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Affirmed and Memorandum Opinion filed March 31, 2009.
Fourteenth Court of Appeals
JESSICA WILKINS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SHA=NYA HARRIS, Appellant
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2004-45728
M E M O R A N D U M O P I N I O N
Appellant Jessica Wilkins, individually and as personal representative of the estate of Sha=nya Harris, appeals from the trial court=s order denying her motion for new trial and to reinstate her claims against the appellees, Julie Kathryn McManemy, M.D. and Jalil Thurber, M.D. Wilkins contends that the doctors obtained their dismissals from the case by filing motions in which they stated that the case could have been brought against their employer, The University of Texas Health Sciences Center at Houston (AUT@) under the Texas Tort Claims Act. Then, after Wilkins sued UT, UT successfully moved to have the claims against it dismissed by asserting that the claims could not be brought under the Tort Claims Act. Wilkins claims that the premise for the doctors= dismissal was false, and therefore the trial court abused its discretion in refusing to reinstate her claims against them. For the reasons explained below, we conclude that the trial court did not abuse its discretion in denying Wilkins=s motion, and affirm.
In August 2004, Wilkins sued Drs. McManemy and Thurber, alleging that they failed to properly recognize, diagnose, and treat a dangerous infection in her daughter, Sha=nya, and that, as a result of being discharged without proper care, Sha=nya died.
Each doctor filed motions to dismiss Wilkins=s claims pursuant to Texas Civil Practice and Remedies Code subsection 101.106(f) of the Texas Tort Claims Act. Under this subsection, 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 Aunder this chapter@ against the governmental unit, the suit is considered to be against the employee in the employee=s official capacity only. Tex. Civ. Prac. & Rem. Code ' 101.106(f) (Vernon 2005). On the employee=s motion, Athe 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.@ Id. In their motions to dismiss, the doctors claimed that (1) they were employees of UT, which is a governmental unit, (2) they were being sued in their official capacities as physicians at UT, and (3) the claims against them could have been brought against UT.
In response, Wilkins filed amended pleadings omitting the claims against the doctors and substituting claims against UT. UT then filed a plea to the jurisdiction and motion to dismiss Wilkins=s suit, claiming that the suit could not be brought against UT because it did not arise from the use or condition of personal property as required by the Tort Claims Act and UT had not received notice as required by the act. The trial court granted the motion and dismissed Wilkins=s claims against UT. Wilkins then moved for a new trial, asking the trial court to vacate the dismissals of the claims against the doctors and to reinstate the claim against them. The trial court denied the motion, and this appeal followed.
Wilkins does not contend that the trial court erred in dismissing her claims against UT. The sole issue is whether the trial court abused its discretion in refusing to reinstate the claims against the doctors after the claims against UT were dismissed.
A. Standard of Review
We review a trial court=s denial of a motion for new trial for abuse of discretion. Dir., State Employees Workers= Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Stevens v. Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71, 77 (Tex. App.CHouston [14th Dist.] 2007, pet. denied). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. Stevens, 231 S.W.3d at 77 (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)). The fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate an abuse of discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985).
B. Wilkins=s Arguments
Wilkins contends that the trial court abused its discretion in refusing to reinstate the claims against the doctors because the previous dismissals were based on two fundamentally opposing premises: (1) Wilkins dismissed her claims against the doctors based on their statements that the case could be brought against UT under the Tort Claims Act, and (2) the trial court dismissed the case against UT on the grounds that no case could be brought against UT under the Tort Claims Act. Because both premises cannot be true, Wilkins contends, the trial court should have reinstated the claims against the doctors who obtained dismissals based on their representations that the case could have been brought against UT. Further, Wilkins argues, the dismissals left her with no avenue for seeking compensation for the death of her child.
C. Section 101.106(f) and Wilkins=s Dismissal of Her Claims Against the Doctors
In 2003, as part of a comprehensive effort to reform the tort system, the legislature amended section 101.106. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 656 (Tex. 2008). Entitled AElection of Remedies,@ the section was apparently revised to force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or whether she acted within the general scope of her employment so that the governmental unit is vicariously liable. Id. at 656B57. Once the plaintiff has acted on that decision by filing suit against either the employee or the governmental unit, the statute plainly provides that the plaintiff may not later sue the other. The plaintiff has made Aan irrevocable election@ that Aimmediately and forever bars any suit or recovery by the plaintiff against@ whichever of the twoCthe employee or the governmental unitCthat the plaintiff elects not to sue. Tex. Civ. Prac. & Rem. Code ' 101.106(a), (b). The legislature determined that this forced choice would reduce the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery. Garcia, 255 S.W.3d at 656B57.
But the statute does provide a method in subsection 101.106(f) for a plaintiff to switch the target of the lawsuit in one particular instance. As noted above, the doctors relied on subsection 101.106(f) for their motions to dismiss. That subsection provides the following:
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 ' 101.106(f) (emphasis added).
Wilkins contends that the emphasized language forced her to dismiss the doctors and name UT as the defendant within thirty days after the doctors filed their motions to dismiss; otherwise, her suit would be dismissed. Wilkins asserts that because the statute did not provide for or refer to a hearing or otherwise authorize the trial court to deny an employee=s motion to dismiss, when the employee filed a motion to dismiss stating that the suit could have been brought against a governmental unit, she had to dismiss the claims against the employees or sufferCas a statutory consequenceCthe dismissal of her suit. Therefore, based on the doctors= representations, Wilkins dropped her suit against them. In the statute the Texas Legislature does not expressly refer to a hearing and Wilkins did not request a hearing to challenge the doctors= representations.
Wilkins points out that the statute was new when the doctors moved for their dismissal and there was little case law interpreting the statutory revisions at the time the doctors filed their motions to dismiss. When Wilkins amended her petitions in 2005 to drop the doctors as parties and add UT as a party, no opinions had issued holding that the employee moving for dismissal must show why the suit could be brought against the governmental unit. Not until 2006 did this court issue an opinion discussing the employee=s burden to establish that the claim could be brought against the governmental unit. See Phillips v. Dafonte, 187 S.W.3d 669 (Tex. App.CHouston [14th Dist.] 2006, no pet.).
Wilkins also contends that a case issued two days after Dr. McManemy filed her motion to dismiss, Villasan v. O=Rourke, 166 S.W.3d 752 (Tex. App.CBeaumont 2005, pet. denied), gave the impression that a trial court was required to dismiss a claim after a section-101.106 motion was filed. See id. at 758 (stating that subsection 101.106(f) Aallows the governmental employee whose conduct is alleged to have been within the scope of employment to force the plaintiff to amend the suit and name the governmental entity as the sole defendant@). However, Villasan dealt with subsection 101.106(e), not 101.106(f). See id. at 756. The Villasan court held that, under subsection 101.106(e), the filing of a motion to dismiss by a governmental unit imposed a statutory duty on the trial court to immediately dismiss the claim against the employee. See id. at 758B59. Subsection 101.106(f) does not provide for the immediate dismissal of a plaintiff=s case upon the filing of a motion; it includes additional language providing that it applies if a plaintiff sues a government employee (1) based on conduct within the general scope of that employee=s employment, and (2) if it could have been brought Aunder this chapter@ against the governmental unit. See Tex. Civ. Prac. & Rem. Code ' 101.106(f). Thus, the Villasan court=s analysis of subsection 101.106(e) does not readily translate to subsection 101.106(f).
In addition, the appeal in Villasan was brought after the defendant doctor moved to dismiss the plaintiffs= claims, the plaintiffs filed a response to the doctor=s allegations, and the trial court denied the doctor=s motion after conducting a hearing on the motion. Id. at 757. Thus, Villasan provided some indication that hearings and appeals were available procedural avenues to test the doctors= allegations.
The Villasan court provided a lengthy analysis of section 101.106 and its provisions. Among other things, the court determined that, because section 101.106 forces a plaintiff to decide at the outset which parties to sue in a Tort Claims Act suit, it impedes a plaintiff=s ability to pursue, through trial, alternative theories at the same time. See id. at 759B60. Consequently, a plaintiff=s initial decision regarding who should be made a party in a Tort Claims Act suit is critical because it is irrevocable. See id. at 760B61. As the court noted, A[g]iven the fact that an election is forced by section 101.106 at the time a [Tort Claims Act] claimant files suit, and the fact that the initial decision is irrevocable, the initial decision may determine the claimant=s ultimate success or failure.@ Id. at 761.
Wilkins also contends that Franka v. Velasquez, 216 S.W.3d 409 (Tex. App.CSan Antonio 2006, pet. granted), is instructive on subsection 101.106(f) because it Arejected a proposed construction of that statute which would have left the plaintiff without a remedy.@ In Franka, the court held that the trial court did not err in denying the defendant doctors= motion to dismiss under subsection 101.106(f) because they failed to establish that the underlying lawsuit could have been brought against UT. Id. at 410. Among other things, the doctors appeared to suggest that it was sufficient to raise a fact issue as to whether the suit could have been brought against the governmental unit to enable a trial court to dismiss claims against employees under subsection 101.106(f). Id. at 413. The Franka court rejected this suggestion in view of its potential result that the plaintiffs would be left without a remedy if the claims against the doctors were dismissed and immunity was ultimately held not to have been waived. Id.
Although Wilkins seizes on the Franka court=s language to argue that this court similarly should eschew a construction of subsection 101.106(f) that leaves a plaintiff without a remedy, the appellees argue that the Franka case is distinguishable because its procedural posture was significantly different. The appellees point out that in Franka, the trial court considered the doctors= motion, the plaintiffs= pleadings and response, and the evidence presented before denying the motion. Here, the trial court held no hearing and considered no evidence, and so there is no potential fact issue raised, nor is there any showing that the doctors were or were not entitled to dismissal for this court to consider. Moreover, the Franka court=s reasoning is consistent with this court=s 2006 construction of subsection 101.106(f) in Phillips v. Dafonte, in which we held that the defendant doctors were not entitled to be dismissed from the suit under subsection 101.106(f) because they failed to establish that the plaintiff=s suit could have been brought under the Tort Claims Act against the governmental unit. See Phillips, 187 S.W.3d at 675B77.6
D. The Trial Court Did Not Abuse Its Discretion
Having reviewed the record and the parties= arguments, it is apparent that at the time the doctors invoked section 101.106 as the basis for their motions to dismiss, it was a relatively new statute with little case law interpreting it. Wilkins apparently determined at that time that subsection 101.106(f), the specific section relied on by the doctors, required her either to substitute the doctors= employer as the defendant or have her suit dismissed in its entirety, without an opportunity for a hearing or a determination as to whether the claims could have been brought under the Tort Claims Act. As a result, the trial court never held a hearing on Thurber=s and McManemy=s motions to dismiss. Since that time, courts have determined that this construction of the statute is incorrect. See, e.g., Hall v. Provost, 232 S.W.3d 926, 928 (Tex. App.CDallas 2007, no pet.) (holding that defendant doctor was not entitled to dismissal under subsection 101.106(f) because he failed to demonstrate that plaintiff had alleged claims that could have been brought under the Tort Claims Act); Kanlic v. Meyer, 230,S.W.3d 889, 893B94 (Tex. App.CEl Paso 2007, pet. denied) (same); Franka, 216 S.W.3d at 410; Phillips, 187 S.W.3d at 675B77.
On June 10, 2005, in response to Dr. McManemy=s motion to dismiss, Wilkins filed an amended petition and dropped Dr. McManemy as a defendant. On August 8, 2005, Wilkins filed a second amended petition in response to Dr. Thurber=s motion to dismiss and dropped Dr. Thurber as a party, just as she had done with Dr. McManemy. The motion to reinstate was filed on August 10, 2006, one month after the trial court signed an order granting the hospital=s plea to the jurisdiction and motion to dismiss.
Wilkins argues that the trial court had plenary power to reinstate the claims against the doctors and set aside the dismissals because a final judgment had not been entered in the case. But, that questionCi.e., whether the trial court had plenary power to reinstateCis not the real issue before us. The issue is whether the trial court abused its discretionCthat the trial court=s decision was arbitrary, unreasonable, and without reference to guiding principles. At the posture the case was in when the motion to reinstate was presented to the judge, we cannot say the trial court abused its discretion by refusing to reinstate the two doctors as parties. See Griffin v. Miles, 553 S.W.2d 933, 935 (Tex. Civ. App.CHouston [14th Dist.] 1977, writ dism=d) (holding trial court did not abuse its discretion in failing to reinstate case based on allegation that defendant breached alleged oral settlement agreement between opposing attorneys, when plaintiffs offered no reason why agreement was not reduced to writing and entered into the record); Chester v. Tex. Employers Ins. Ass=n, 265 S.W.2d 648, 650B51 (Tex. Civ. App.CTexarkana 1954, writ ref=d n.r.e.) (holding trial court did not abuse its discretion by refusing to reinstate plaintiff=s case after plaintiff moved for and was granted a voluntary non-suit one day after defendant presented a motion for instructed verdict in a jury trial); Butler v. Light Pub. Co., 112 S.W.2d 542, 543 (Tex. Civ. App.CSan Antonio 1937, writ dism=d) (holding plaintiff failed to show trial court abused its discretion by refusing to reinstate libel suit when voluntary non-suit had been granted to plaintiff after jury heard evidence and court=s charge had been prepared). For us to say that the trial court abused its discretion, we would have to conclude that the trial court had no choice but to reinstate the claims against the doctors; that we cannot do.
Wilkins also argues that we should reinstate the case in the interest of justice. However, Wilkins has not cited us any case law that would support our reversal of the trial court on this basis, and we have found none. Wilkins also reminds us of the court=s duty to decide cases on the merits. See Tex. Employment Comm=n v. Stewart Oil Co., 267 S.W.2d 137, 138 (Tex. 1954). We are cognizant of that duty, but we are likewise well aware of our duty to uphold a trial court=s ruling made within its discretion even when we might not have ruled in the same way. See Downer, 701 S.W.2d at 241B242.
We hold that the trial court did not abuse its discretion, and we overrule Wilkins=s issue. The trial court=s judgment is affirmed.
/s/ Jeffrey V. Brown
Panel consists of Justices Frost, Brown, and Boyce.
 After Wilkins amended her petition the first time to omit her claims against Dr. McManemy and to add UT as a defendant, she also filed a notice of nonsuit of her claims against Dr. McManemy. After Wilkins amended her petition the second time to omit her claims against Dr. Thurber, the trial court signed an order granting Dr. Thurber=s motion to dismiss and dismissing the suit against him with prejudice. However, Wilkins recognizes that her claims against the doctors were effectively dismissed when she filed the amended pleadings omitting them as defendants.
 Subsection 101.106(e) provides: AIf 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(e).
 Notably, in explaining why the decision is critical, the Villasan court states: A[i]f the complaint alleges the government-employed medical professional negligently exercised medical discretion, and does not fall within the limited waiver of immunity under the [Tort Claims Act], it appears that under section 101.106 the complaint should be made against the medical professional alone, and not the governmental agency.@ Id. at 760.
 The Franka court reasoned that, similarly, a trial court also is not permitted to grant a plea to the jurisdiction if a fact issue exists. See Franka, 216 S.W.3d at 413 (citing Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227B28 (Tex. 2004)).
 Although the trial court did sign an order granting Dr. Thurber=s motion to dismiss and dismissing Wilkins=s suit against him with prejudice, the order was signed after Wilkins filed her second amended petition dropping the claims against Dr. Thurber from the suit. Therefore, the order is of no significance because the claims against Dr. Thurber were already effectively dismissed from the suit.
6 Wilkins also cites the open courts provision of the Texas Constitution for the proposition that the State of Texas guarantees to her citizens both the right to seek judicial redress for wrongs done to them and access to the state=s courts to seek that redress. See Tex. Const. art. I, ' 13. However, this claim was not raised in the trial court and is therefore waived. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (holding that a litigant must raise an open-courts challenge in the trial court). And, in any event, we find the cases she cites on this issue distinguishable because they involved judges who caused the parties to be dismissed, while here, Wilkins herself non-suited the claims against the doctors. See MJR Fin., Inc. v. Marshall, 840 S.W.2d 5, 10 (Tex. App.CDallas 1992, no writ) (holding that, in cases involving factual disputes, due process requires that a party be allowed to present evidence before a trial court may impose Adeath penalty@ sanctions); Turcotte v. Trevino, 499 S.W.2d 705, 723 (Tex. Civ. App.CCorpus Christi 1973, writ ref=d n.r.e.) (holding that trial court denied appellants of due process when it denied them the opportunity to present evidence on issue of estoppel before dismissing them from case).