In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-20-00126-CV
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CYNTHIA ABRON, Appellant
V.
UZOCHI OBIOHA, Appellee
__________________________________________________________________
On Appeal from the 44th District Court
Dallas County, Texas
Trial Cause No. DC-19-16603
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MEMORANDUM OPINION
In three issues on appeal, appellant Cynthia Abron challenges the trial court’s
order dismissing her suit against appellee Uzochi Obioha, M.D., under section
101.106(f) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. &
Rem. Code Ann. § 101.106(f). We affirm the trial court’s judgment.
BACKGROUND
In October 2019, Abron filed a health care liability claim against Obioha,
asserting claims for negligence, gross negligence, and intentional infliction of
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emotional distress related to conduct that occurred when Obioha provided Abron
medical treatment. On November 22, 2019, Obioha filed a Motion to Dismiss under
section 101.106(f) based on Abron having sued Obioha in her official capacity for
care she provided Abron while working as an employee of a local governmental unit,
Dallas County Hospital District d/b/a/ Parkland Health & Hospital System
(“Parkland”). Obioha argued that since she is a physician employed by a local unit
of government under the Texas Tort Claims Act (TTCA), Abron must file amended
pleadings and elect to sue the governmental entity within thirty days of Obioha’s
filing of a 101.106(f) motion, or face dismissal. The record contains Obioha’s
affidavit, in which she averred that she was employed as a physician at Parkland and
acting in the course and scope of her employment at all times she saw or treated
Abron. The record also contains an employment verification letter dated January 3,
2020, verifying Obioha’s current employment with Parkland and a hiring date of
June 4, 2012.
Abron filed a response to Obioha’s Motion to Dismiss and argued that section
101.106(f) does not apply in this case because the causes of action she asserted
against Abron are statutorily barred from being brought against Parkland pursuant
to section 101.021 of the TTCA. Abron further argued that the intentional tort she
asserted against Obioha does not fall under the TTCA. According to Abron, official
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immunity does not protect a physician for a public entity that has been sued in their
individual capacity from liability for their individual medical decisions and actions.
The trial court entered an Order of Dismissal dismissing Abron’s causes of
action against Obioha for failure to conform to the statutory requirements for a suit
against a government employed physician. The trial court found that (1) Obioha is
employed by a local unit of government under the TTCA; (2) all of Obioha’s contact
with Abron was in Obioha’s official capacity; (3) Abron failed to exercise her
election of remedies after due and timely notice under section 101.106(f) based upon
her causes of action being statutorily barred as against Parkland; (4) Abron failed to
exercise the elections timely from the notice received on November 22, 2019, when
Obioha filed the Motion to Dismiss; and (5) Abron contends that the third prong of
101.106(f) is not met as suit could not have been brought against the governmental
unit.
ANALYSIS
In issue one, Abron argues that the trial court erred by dismissing her suit
under section 101.106(f) because Obioha failed to meet the third prong, which
requires Obioha to show that Abron’s suit could have been brought against Obioha’s
governmental employer under the TTCA. According to Abron, the trial court’s
Order of Dismissal explicitly found that her causes of action were statutorily barred
against Obioha’s governmental employer. In issue three, Abron argues that her gross
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negligence and intentional infliction of emotional distress causes of action were
improperly dismissed because they are not subject to the TTCA. We will be
analyzing issues one and three together.
Obioha contends that Abron’s argument that section 101.106(f) requires the
employee to establish a waiver of the government’s immunity to obtain dismissal is
the same argument that the Texas Supreme Court rejected in Franka v. Velasquez,
332 S.W.3d 367 (Tex. 2011). According to Obioha, the Franka Court ruled that a
government employee did not have to establish a waiver of immunity to be entitled
to a dismissal under section 101.106(f), and Obioha maintains that all tort theories
against a governmental unit are assumed to be under the TTCA even though it does
not waive immunity for those torts. Obioha argues that the third prong of section
101.106(f) is not a waiver of immunity and only concerns whether the allegations
arise under the TTCA, and Obioha contends that all of Abron’s alleged torts arise
under the TTCA.
Sovereign and governmental immunity exist to protect the State and its
political subdivisions from lawsuits and liability for money damages. Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Tex. Nat. Res.
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Sovereign
immunity extends to various divisions of state government, including hospitals. Ben
Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions
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Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006). Without an
express waiver of sovereign or governmental immunity, courts do not have subject-
matter jurisdiction over suits against the State or its political subdivisions. See State
v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006); Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 224-25 (Tex. 2004).
The TTCA provides a limited waiver of immunity and has an election-of-
remedies provision that is intended to force a plaintiff at the outset of her suit to
determine whether to sue a responsible employee of a governmental unit in her
individual capacity because she is solely liable, or to sue a governmental unit
because the employee acted within the scope of her employment. See Tex. Civ. Prac.
& Rem. Code Ann. § 101.106; Garza v. Harrison, 574 S.W.3d 389, 399 (Tex. 2019);
Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017). If a plaintiff only sues a
public employee in that employee’s official capacity for conduct within the scope of
employment, the employee can force the plaintiff to dismiss her suit against the
employee and to file an amended petition against the governmental unit, because an
official-capacity suit against an employee is merely another way of pleading a cause
of action against a governmental employer. Tex. Civ. Prac. & Rem. Code Ann. §
101.106(f); Garza, 574 S.W.3d at 399. Section 101.106(f) states:
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
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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). To be entitled to a dismissal under
101.106(f), the defendant employee must establish (1) she is an employee of a
governmental unit, (2) the plaintiff’s suit was based on conduct within the scope of
defendant’s employment with a governmental unit, and (3) the suit could have been
brought against the governmental unit under the TTCA. See id.; Laverie, 517 S.W.3d
at 752. We review a trial court’s ruling on a motion to dismiss under section
101.106(f) de novo. Garza, 574 S.W.3d at 399.
Abron pleaded claims of negligence, gross negligence, and intentional
infliction of emotional distress and sought exemplary damages from Obioha for
conduct that occurred while she was providing Abron medical treatment within the
general scope of her employment with Parkland. Abron’s tort claims “could have
been brought” under the TTCA against Parkland even though they do not fall within
TTCA’s waiver of immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f);
Franka, 332 S.W.3d at 369, 375-85 (explaining that any tort claim against the
government is brought under TTCA for purposes of section 101.106, even if the tort
claim does not fall within TTCA’s limited waiver of immunity); Garcia, 253 S.W.3d
at 659 (providing that because the TTCA is the only avenue for common-law
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recovery against the government, all tort theories alleged against a governmental
unit are assumed to be under the TTCA). Section 101.106 “‘bars any action[,]’”
including an intentional tort and a claim of gross negligence. Newman v. Obersteller,
960 S.W.2d 621, 622-23 (Tex. 1997); see Liu v. City of San Antonio, 88 S.W.3d 737,
744 (Tex. App.—San Antonio 2002, pet. denied); Enriquez v. Morsy, No. 01-18-
00877-CV, 2020 WL 4758428, at *16 (Tex. App.—Houston [1st Dist.] Aug. 18,
2020, no pet.) (mem. op.); Enriquez v. Orihuela, No. 14-18-00147-CV, 2019 WL
6872946, at *10 (Tex. App.—Houston [14th Dist.] Dec. 17, 2019, pet. denied)
(mem. op.). We conclude that Obioha established that Abron’s claims could have
been brought against Parkland under the TTCA and that section 101.106(f) does not
require Obioha to establish a waiver of the government’s immunity to obtain a
dismissal. We overrule issues one and three.
In issue two, Abron argues that the trial court erred in dismissing her case
because the legislative intent of the Texas State Legislature in enacting section
101.106(f) was not to provide doctors employed by governmental entities blanket
immunity from all malpractice claims related to their practice on behalf of a
governmental employer. Abron fails to cite legal authority to support her argument;
therefore, we find the argument was inadequately briefed. See Tex. R. App. P. 38.1(i)
(providing that appellate brief must contain appropriate citations to authorities). We
overrule issue two. Having overruled each of Abron’s issues, we conclude that the
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trial court did not err by dismissing Abron’s suit against Obioha under section
101.106(f). Accordingly, we affirm the trial court’s judgment.
AFFIRMED.
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W. SCOTT GOLEMON
Chief Justice
Submitted on June 4, 2021
Opinion Delivered November 4, 2021
Before Golemon, C.J., Kreger and Johnson, JJ.
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