Opinion issued March 13,=20
2008
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO.=20
01-07-00198-CV
____________
RAYMON POLAND, INDIVIDUALLY AND AS =
INDEPENDENT=20
ADMINISTRATOR OF THE ESTATE OF JESSIE POLAND, ROBERT MARTIN, and =
FRANK=20
MARTIN, Appellants
V.
DR. JAMES WILLERSON,=20
Appellee
On Appeal from 152nd District=20
Court
Harris County, =
Texas
Trial Court Cause No.=20
2006-38894(b)
MEMORANDUM=20
OPINION
<=
/SPAN>Appellants,=20
Raymond Poland, individually and as independent administrator of =
the=20
estate of Jessie Poland, Robert Martin, and Frank Martin =
(=E2=80=9Cthe Poland=20
parties=E2=80=9D), appeal from a judgment=20
dismissing their health-care-liability and related claims against=20
appellee, Dr. James Willerson. We determine whether the trial =
court erred=20
in granting appellees=E2=80=99 motion to dismiss the claims =
against him under=20
Texas Civil Practice and Remedies Code section 101.106, =
specifically,=20
under section 101.106(f). See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 101.106(f) (Vernon 2005). We affirm.
Background
<=
/SPAN>The=20
factual recitations come principally from the Poland =
parties=E2=80=99 petitions.=20
Appellant Raymon Poland was the husband of Jessie Poland; the =
remaining=20
appellants were his natural children. In August 2003, Jessie =
Poland, under=20
the care of Dr. Willerson and Dr. Ott (an appellee in a related =
appeal),=20
was hospitalized at St. Luke=E2=80=99s Episcopal Hospital and the =
Texas Heart=20
Institute (both appellees in another related appeal) for an =
elective=20
surgical procedure to repair her heart=E2=80=99s mitral =
valve. ![3DFootnote](3D"")
Appellee Dr. Alina Grigore, who was =
employed by=20
appellee Dr. Arthur S. Keats & Associates (both of whom are =
appellees=20
in another related appeal), =
was the=20
anesthesiologist for the surgical procedure. The Poland parties =
alleged=20
that, at the time of surgery, Jessie Poland=E2=80=99s blood =
contained a level of=20
Coumadin that the health providers should have known rendered her =
blood=20
fully anti-coagulated and, thus, rendered surgery dangerous. The =
surgery=20
was nonetheless performed; Jessie Poland bled internally; and she =
died=20
several days later of multi-system organ =
failure.
<=
/SPAN>In=20
their original and first amended petitions, both of which were =
filed on=20
October 24, 2005, the =
Poland parties=20
sued, among other defendants, St. Luke=E2=80=99s Episcopal =
Hospital, the Texas=20
Heart Institute, the University of Texas Health Science Center at =
Houston=20
(=E2=80=9CUTHSCH=E2=80=9D), Dr. Arthur S. Keats & Associates, =
and Drs. Ott, Grigore,=20
and Willerson for Jessie Poland=E2=80=99s wrongful death, for her =
pain and=20
suffering and medical costs before her death, and for her burial =
expenses.=20
In their first amended petition, the Poland parties alleged that =
Dr.=20
Willerson =E2=80=9Cpractices medicine at the Texas Heart =
Institute=E2=80=9D and that=20
UTHSCH could be served =E2=80=9Cby serving its registered agent, =
Dr. James T.=20
Willerson.=E2=80=9D
<=
/SPAN>On=20
December 5, 2005, Dr. Willerson, through Frank Doyle, his counsel =
at the=20
firm of Johnson, Spalding, Doyle, West & Trent, filed his =
original=20
answer, which asserted, among other matters, the affirmative =
defense of=20
the statute of limitations. Nonetheless, on December 8, 2005, the =
Attorney=20
General=E2=80=99s Office, asserting that it represented both =
UTHSCH and Dr.=20
Willerson, filed an original answer on behalf of UTHSCH and Dr.=20
Willerson that also =
contained a=20
motion to dismiss Dr. Willerson under Texas Civil Practice & =
Remedies=20
Code section 101.106(e). See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 101.106(e) (Vernon 2005) (=E2=80=9CIf a =
suit is filed under=20
this chapter against both a governmental unit and any of its =
employees,=20
the employees shall immediately be dismissed on the filing of a =
motion by=20
the governmental unit.=E2=80=9D). The dismissal portion of the =
pleading alleged=20
that Dr. Willerson was =E2=80=9Can employee of [UTHSCH]=E2=80=9D =
who was eligible to be=20
dismissed under section 101.106(e). The trial court did not rule =
on this=20
motion, and no one addresses on appeal the propriety of the =
court=E2=80=99s=20
failure to rule on it; nor did Dr. Willerson at any time assert =
that he=20
should be dismissed because UTHSCH had carried its burden under =
section=20
101.106(e). See Villasan v. O=E2=80=99Rourke, 166 S.W.3d =
752, 758 (Tex.=20
App.=E2=80=94Beaumont 2005, pet. filed) (=E2=80=9CWe=20
hold that under Code section 101.106[(e)], the governmental agency =
perfects the statutory right to a dismissal of its employee upon =
the=20
filing of a motion to dismiss, and the employee may subsequently =
rely on=20
the duty created by the motion to require the trial judge to =
dismiss the=20
claims against him.=E2=80=9D).
<=
/SPAN>Some=20
time thereafter, the Poland parties and Dr. Willerson agreed to =
nonsuit=20
Dr. Willerson without prejudice. On January 11, 2006, Frank Doyle =
and the=20
Poland parties=E2=80=99 counsel signed the following rule 11 =
agreement to=20
memorialize their understanding:
As we discussed, this letter is to =
memorialize our=20
agreement that [the Poland parties] have agreed to dismiss =
Defendant,=20
James Willerson, M.D. without prejudice, from the above-referenced =
case.=20
It is understood that should Plaintiffs determine from discovery =
that=20
James Willerson, M.D. is a proper party to this case, he can be =
served by=20
certified mail with an amended petition through me as his attorney =
of=20
record.
The parties also =
agree:
1.The statute of limitations is tolled =
from the=20
date of this letter, until September 15, 2006. Plaintiffs agree =
that=20
Defendant, James Willerson, M.D., by entering this agreement has =
not=20
waived any statute of limitations defense he may have up to and =
including=20
the date of this agreement.
2.All Chapter 74 deadlines are tolled as =
to=20
Defendant, James Willerson, M.D.
On March 8, 2006, the Poland =
parties=E2=80=99 notice of=20
nonsuit of Dr. Willerson was filed in the trial court. =
Accordingly, at=20
this point, Dr. Willerson was no longer a party to the litigation, =
although UTHSCH still was.
<=
/SPAN>That=20
same day, UTHSCH moved to dismiss the claims against it for the =
Poland=20
parties=E2=80=99 failure to have timely served their expert report =
on it.=20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. =C2=A7 74.351(a), (b) (Vernon Supp.=20
2007). Before the =
trial court=20
ruled on that motion, the Poland parties nonsuited UTHSCH without=20
prejudice. The trial court signed an order nonsuiting UTHSCH on =
May 22,=20
2006.
<=
/SPAN>On=20
May 19, 2006, after the Poland parties had filed their notice of =
nonsuit=20
of UTHSCH, the Poland =
parties amended=20
their petition to re-add Dr. Willerson to the lawsuit; their third =
amended=20
petition, filed June 29, 2006, did the same.
The third amended, =
=E2=80=9Clive=E2=80=9D petition alleged the=20
following causes of action or theories of recovery against all =
defendants,=20
including Dr. Willerson: (1) negligence, (2) gross negligence, (3) =
actual=20
and constructive fraud, (4) intentional infliction of emotional =
distress,=20
(5) assault and battery, (6) intentional and negligent =
abandonment, (7)=20
breach of fiduciary duties, (8) =E2=80=9Cnegligent breach of =
fiduciary duties,=E2=80=9D=20
(9) malpractice, (10) =E2=80=9Clack of proper informed =
consent,=E2=80=9D (11) =E2=80=9Ctampering=20
with official medical records,=E2=80=9D (12) =
=E2=80=9Cforgery,=E2=80=9D (13) violations of the=20
Texas Deceptive Trade Practices=E2=80=93Consumer Protection Act=20
(=E2=80=9CDTPA=E2=80=9D),
and (14) conspiracy among all =
defendants. This=20
=E2=80=9Clive,=E2=80=9D third amended petition also added =
allegations that the defendants=20
altered Jessie Poland=E2=80=99s medical records and forged Raymon =
Poland=E2=80=99s=20
signature on unspecified hospital documents. The Poland parties =
sought=20
actual and exemplary damages.
<=
/SPAN>Unlike=20
other defendants, Dr. Willerson did not object to or move to =
strike the=20
Poland parties=E2=80=99 live petition to the extent that it =
attempted to recast=20
health-care-liability claims as other causes of =
action. However, Dr. Willerson filed two =
motions to=20
dismiss the Poland parties=E2=80=99 claims against him. The first =
motion invoked=20
Texas Civil Practice & Remedies Code section 74.351(b) and =
sought=20
dismissal for failure to have served an expert report upon him or =
his=20
attorney within the statutorily required 120 days, even taking =
into=20
account the rule 11 agreement=E2=80=99s tolling period. See =
Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 74.351(b) (Vernon =
2005)=20
(providing that trial court must dismiss health-care-liability =
claim=20
against defendant if claimant fails to serve expert=E2=80=99s =
report and=20
curriculum vitae on that defendant within period specified =
by=20
section 74.351(a)); Act of =
June 2,=20
2003, 78th Leg., R.S., ch. 204, =C2=A7 10.01, 2003 Tex. Gen. =
Laws 847, 875=20
(providing that claimant must serve defendant against whom=20
health-care-liability claim is asserted with expert=E2=80=99s =
report and=20
curriculum vitae within 120=20
days of claim=E2=80=99s filing), amended=20
by Act of May 18, 2005, 79th Leg., R.S., ch. 635, =
=C2=A7=C2=A7 1=E2=80=933, 2005=20
Tex. Gen. Laws 1590 (current version at Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 74.351(a) (Vernon Supp. 2007)).
<=
/SPAN>The=20
second motion to dismiss relied on Texas Civil Practice and =
Remedies Code=20
section 101.106, asserting both subsection (a) and (f) as bases =
for=20
dismissal. See Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 101.106(a) (Vernon =
2005) (=E2=80=9CThe=20
filing of a suit under this chapter against a governmental unit=20
constitutes an irrevocable election by the plaintiff and =
immediately and=20
forever bars any suit or recovery by the plaintiff against any =
individual=20
employee of the governmental unit regarding the same subject=20
matter.=E2=80=9D); id. =C2=A7 101.106(f) =
(Vernon 2005) (=E2=80=9CIf=20
a suit is filed against an employee of a governmental unit based =
on=20
conduct within the general scope of that employee=E2=80=99s =
employment and if it=20
could have been brought under this chapter against the =
governmental unit,=20
the suit is considered to be against the employee in the =
employee=E2=80=99s=20
official capacity only. On the employee=E2=80=99s motion, the suit =
against the=20
employee shall be dismissed unless the plaintiff files amended =
pleadings=20
dismissing the employee and naming the governmental unit as =
defendant on=20
or before the 30th day after the date the motion is =
filed.=E2=80=9D).
<=
/SPAN>Dr. Willerson=E2=80=99s motions to =
dismiss were both heard=20
on September 8, 2006. No =
additional=20
evidence was presented at the hearing. The trial court orally =
ruled that=20
it was dismissing Dr. Willerson =E2=80=9Cunder 101.106=E2=80=9D =
(that is, it was granting=20
his dismissal motion asserted under section 101.106) and that the =
issue of=20
whether the expert report was served timely was =E2=80=9Cmoot as =
to Dr. Willerson=E2=80=9D=20
(that is, the trial court did not rule on the merits of Dr. =
Willerson=E2=80=99s=20
section 74.351(b) dismissal motion, but ruled that it was moot). =
The trial=20
court=E2=80=99s verbal ruling did not specify whether it was =
dismissing Dr.=20
Willerson under section 101.106(a) or =
101.106(f).
<=
/SPAN>The=20
order that the trial court signed dismissing the claims against =
Dr.=20
Willerson with prejudice, however, was specific:
ON THIS DAY, came on to be heard =
Defendant JAMES=20
WILLERSON, M.D.=E2=80=99s, Motion to Dismiss Pursuant to CPRC =
=C2=A7 101.106(f)=20
and this Court, having considered same, any Response thereto, =
and=20
argument of counsel, is of the opinion that Defendant=E2=80=99s =
Motion is good and=20
should, in all things, be GRANTED. It is, therefore, =
ORDERED, ADJUDGED, AND DECREED that [the =
Poland=20
parties=E2=80=99] causes of action against Defendant JAMES =
WILLERSON,=20
M.D., are hereby dismissed =
with=20
prejudice to the re-filing of same pursuant to =
=C2=A7 101.106(f) of=20
the Texas Civil Practice & Remedies =
Code.
(Emphasis added.) The trial court did not enter findings =
of fact or=20
conclusions of law.
<=
/SPAN>The Poland parties appealed the adverse =
rulings=20
dismissing all of their claims against Drs. Ott, Willerson, and =
Grigore=20
and Arthur S. Keats & Associates,=20
and St. Luke=E2=80=99s Episcopal Hospital and the Texas Heart =
Institute appealed=20
the denial of their motion to dismiss=E2=80=94all under the same appellate =
cause=20
number.
Although the interlocutory order =
appealed by St.=20
Luke=E2=80=99s Episcopal Hospital and the Texas Heart Institute =
was permitted by statute, this was not true of every appealed=20
order. See Tex. Civ. Prac. & Rem. Code =
Ann.=20
=C2=A7 51.014(a) (Vernon 1997 & Supp. 2007). =
On December 18, 2006, this Court, upon =
the=20
parties=E2=80=99 motion, abated the appeal and remanded the cause =
for the trial=20
court=E2=80=94upon various parties=E2=80=99 motions, filed in the =
trial court after=20
appeal, to sever the interlocutory orders rendered in favor of Dr. =
Ott, of=20
Dr. Willerson, and of Dr. Grigore and Dr. Arthur S. Keats &=20
Associates=E2=80=94to =
render final and=20
appealable those interlocutory rulings that had not been =
appealable on an=20
interlocutory basis. Upon remand, the trial court severed the =
rulings=20
against the specified defendants from the underlying cause, =
rendering a=20
final judgment in the newly severed cause numbers involving Dr. =
Ott, Dr.=20
Willerson, and Dr. Grigore and Dr. Arthur S. Keats & =
Associates. On=20
March 15, 2007, this Court reinstated the appeal, assigning =
different=20
appellate cause numbers to the appeal of what had by then become =
four=20
separate rulings in four separate trial-court cause =
numbers. =
This=20
opinion and judgment concern the Poland parties=E2=80=99 appeal of =
the dismissal=20
order rendered in favor of Dr. Willerson.
Section=20
101.106(f)
<=
/SPAN>Under=20
one issue, the Poland parties contend that the trial court erred =
in=20
granting Dr. Willerson=E2=80=99s motion to dismiss under section =
101.106(f).=20
A. Standard=20
of Review
<=
/SPAN>When,=20
as here (as explained below), our review of a ruling on a motion =
to=20
dismiss under section 101.106(f) involves a question of law =
applied to=20
uncontroverted facts, our standard of review can be described as =
de novo.=20
See Turner v. Zellers, 232 S.W.3d 414, 418 (Tex. =
App.=E2=80=94Dallas 2007,=20
no pet.); see also Williams v. Nealon, 199 S.W.3d 462, 464 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 2006, pet. filed) (although providing that ruling under =
section=20
101.106(f) is generally reviewed for abuse of discretion, also =
recognizing=20
that ruling that is =E2=80=9Ccontrary to case law=E2=80=9D is =
inherent =E2=80=9Cabuse of=20
discretion,=E2=80=9D thereby indicating that trial court will, as =
matter of law,=20
abuse its discretion if it misapplies law); cf. Intracare Hosp. =
N. v.=20
Campbell, 222 S.W.3d 790, 795 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2007, no=20
pet.) (in considering standard of review of ruling under Texas =
Civil=20
Practice and Remedies Code section 74.351, noting, =E2=80=9C[A] =
trial court has no=20
discretion in determining what the law is, which law governs, or =
how to=20
apply the law. . . . Accordingly, the standard of review =
of this=20
particular ruling [concerning a pure question of law] is the same, =
regardless of whether it is described as abuse of discretion or =
de=20
novo.=E2=80=9D) =
(citation=20
omitted). Our scope of =
review =E2=80=9Cis=20
limited to those arguments raised in the motion to =
dismiss.=E2=80=9D=20
Williams, 199 S.W.3d at 464=E2=80=9365.
B. The=20
Law
<=
/SPAN>Section=20
101.106(f) provides:
If a suit is filed against an employee =
of a=20
governmental unit based on conduct within the general scope of =
that=20
employee=E2=80=99s employment and if it could have been brought =
under this chapter=20
against the governmental unit, the suit is considered to be =
against the=20
employee in the employee=E2=80=99s official capacity only. On the =
employee=E2=80=99s=20
motion, the suit against the employee shall be dismissed unless =
the=20
plaintiff files amended pleadings dismissing the employee and =
naming the=20
governmental unit as defendant on or before the 30th day after the =
date=20
the motion is filed.
Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 101.106(f). =
=E2=80=9CTherefore, to be=20
entitled to a dismissal under section 101.106(f) a defendant must =
show=20
that the plaintiff=E2=80=99s suit (1) was based on conduct within =
the general=20
scope of the defendant=E2=80=99s employment with a governmental =
unit and (2) could=20
have been brought under the Texas Tort Claims Act against that=20
governmental unit.=E2=80=9D Williams,=20
199 S.W.3d at 466. The first component of the test =
actually=20
encompasses two inquiries: whether the individual defendant was an =
employee of a governmental unit and whether he was acting in the =
scope of=20
that employment at the relevant time. See Lanphier v. Avis, =
No.=20
06-07-00074-CV, 2008 WL 89755, at *4 n.3 (Tex. =
App.=E2=80=94Texarkana Jan. 10,=20
2008, pet. filed); Turner, 232 S.W.3d at =
417.
<=
/SPAN>=E2=80=9CThe=20
purpose of section 101.106 is to force a plaintiff to choose =
whether he=20
will seek to impose tort liability on a governmental unit or on=20
governmental employees, individually.=E2=80=9D Williams, 199 S.W.3d at =
465. =E2=80=9CThe=20
Legislature=E2=80=99s apparent goal of reducing cost is enhanced =
by the amended=20
statutory provisions because they narrow the issues for trial, =
thereby=20
reducing the delay and expense otherwise associated with discovery =
related=20
to theories no longer relevant in light of the election made by =
claimants=20
on their initial filing of suit.=E2=80=9D=20
Villasan, 166 S.W.3d at 760. =
The section (specifically, =
subsection=20
(f)) provides =E2=80=9Ca procedure for dismissing government =
employees and=20
substituting the governmental entity in cases in which only =
employees were=20
named as defendants,=E2=80=9D allowing =E2=80=9Cthe=20
government employee whose conduct is alleged to have been within =
the scope=20
of employment to force the plaintiff to amend the suit and name =
the=20
governmental entity as the sole defendant.=E2=80=9D Tejada v. =
Rowe, 207=20
S.W.3d 920, 924 (Tex. App.=E2=80=94Beaumont 2006, pet. filed); =
Villasan,=20
166 S.W.3d at 758. =
=E2=80=9C[T]he statute strongly favors =
dismissal of=20
governmental employees.=E2=80=9D Waxahachie Indep. Sch. Dist. =
v. Johnson,=20
181 S.W.3d 781, 785 (Tex. App.=E2=80=94Waco 2005, pet. =
filed).
C. Discussion
<=
/SPAN>In=20
one issue in their briefing and at oral argument, the Poland =
parties=20
raised several challenges to the trial court=E2=80=99s granting of =
Dr. Willerson=E2=80=99s=20
dismissal motion under section 101.106.
<=
/SPAN>1. Whether=20
the Poland parties failed properly to assert on appeal that their =
claims=20
were not brought under the Texas Tort Claims Act=20
(=E2=80=9CTTCA=E2=80=9D)
<=
/SPAN>The Poland parties did not assert below or =
in their=20
appellate briefing that the claims against Dr. Willerson were not =
=E2=80=9Cbrought=20
under=E2=80=9D the TTCA, so =
that section=20
101.106=E2=80=94which requires that the TTCA waive sovereign =
immunity from suit=20
before the plaintiff must elect to sue the governmental unit, =
rather than=20
its employee=E2=80=94did =
not apply. See=20
Tex. Civ. Prac. & =
Rem. Code=20
Ann. =C2=A7=C2=A7 101.106(a), (f) (providing that =
section 101.106=20
applies only if suit is brought =E2=80=9Cunder this =
chapter=E2=80=9D=E2=80=94that is, if suit=20
asserts claim for which TTCA waives immunity from suit). Likewise, =
they=20
did not challenge below or in their appellate briefing the second =
element=20
of section 101.106(f): =
whether their=20
suit =E2=80=9Ccould have been brought under the Texas Tort Claims =
Act against=20
th[e] governmental unit.=E2=80=9D=20
Williams, 199 S.W.3d at 466.
<=
/SPAN>Nevertheless,=20
at oral argument before this Court, the Poland parties argued for =
the=20
first time that their actual allegations against Dr. =
Willerson were=20
for professional negligence in his treatment of Jessie =
Poland=E2=80=94a=20
health-care-liability claim within the scope of Texas Civil =
Practice and=20
Remedies Code chapter 74, but not a claim subject to the =
TTCA=E2=80=99s waiver of=20
sovereign immunity from suit. See =
id. (indicating that claim of medical =
negligence =E2=80=9Cis=20
not encompassed by the Texas Tort Claim Act=E2=80=99s limited =
waiver of sovereign=20
immunity.=E2=80=9D). The Poland parties further asserted at =
oral=20
argument that because none of their petitions implicated the TTCA =
for this=20
reason, the election-of-remedies provisions of section 101.106 =
were not=20
triggered. See id.=20
(=E2=80=9CBecause medical =
negligence is the=20
basis for Williams=E2=80=99s claims against the doctors, the =
doctors cannot meet=20
the second requirement of section 101.106(f). That is, the doctors =
have=20
not shown that Williams=E2=80=99s claims could have been brought =
against UTMB=20
under the Texas Tort Claims Act.=E2=80=9D).
=
Absent=20
fundamental error, we may not reverse a judgment for a reason not =
asserted=20
by the appellant as a challenge on appeal. See, e.g., =
Walling v.=20
Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (=E2=80=9CWe have held =
repeatedly that=20
the courts of appeals may not reverse the judgment of a trial =
court for a=20
reason not raised in a point of error.=E2=80=9D); see also =
Britton v. Tex.=20
Dep=E2=80=99t of Crim. Justice, 95 S.W.3d 676, 681 n.6 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2002, no pet.) (noting that exception to Walling v. =
Metcalfe=20
rule exists when trial court commits fundamental error); Pirtle =
v.=20
Gregory, 629 S.W.2d 919, 919=E2=80=9320 (Tex. 1982) (noting =
that fundamental=20
error is rare). An appellate challenge must normally be raised in =
the=20
appellant=E2=80=99s opening brief=E2=80=94unless, for example, the =
appellant moves for and=20
is granted leave to amend its brief. See Tex. R. App. P. 38.7 =
(=E2=80=9CA brief may=20
be amended or supplemented whenever justice requires, on whatever=20
reasonable terms the court may =
prescribe.=E2=80=9D). The Poland parties did not assert in =
their brief=20
the new challenge that they raised at oral argument, nor have they =
sought=20
leave to amend their brief to add such a challenge. We will not =
consider a=20
wholly new challenge that =
the Poland=20
parties raised during oral argument=20
when that argument was not raised anywhere in their appellate=20
briefing. See Tex. R. App. P. 39.2 =
(=E2=80=9COral=20
argument should emphasize and clarify the written arguments in =
the=20
briefs.=E2=80=9D) (emphasis added); El Paso Natural Gas Co. =
v.=20
Strayhorn, 208 S.W.3d 676, 681 (Tex. App.=E2=80=94Texarkana =
2006, no pet.)=20
(=E2=80=9COral argument should be limited to the issues and =
arguments raised in=20
the written briefing. . . . Counsel should not =
waylay=20
opponents at oral argument by raising new issues or alternative =
arguments=20
not first presented in their briefs.=E2=80=9D); accord French =
v. Gill, 206=20
S.W.3d 737, 743 (Tex. App.=E2=80=94Texarkana 2006, no pet.) =
(=E2=80=9CAn issue or=20
counter-issue may not be raised for the first time at oral =
argument unless=20
the issue has been first presented in the parties=E2=80=99 written =
brief.=20
. . . Because Gill and Riccio did not raise the issue of =
=E2=80=98judicial admissions=E2=80=99 in their written brief, we =
are precluded from=20
considering it.=E2=80=9D) (citations omitted); Ajibade v. =
Edinburg Gen.=20
Hosp., 22 S.W.3d 37, 40 (Tex. App.=E2=80=94Corpus Christi =
2000, pet.=20
struck).
<=
/SPAN>We=20
overrule the challenge, raised for the first time at oral =
argument, that=20
the Poland parties=E2=80=99 claims against Dr. Willerson were for =
professional=20
negligence (i.e., that they were health-care-liability =
claims), so=20
that section 101.106 was not triggered.
<=
/SPAN>2. Whether Dr.=20
Willerson carried his burden of showing his employment by=20
UTHSCH
<=
/SPAN>In=20
their brief, the Poland parties first argue that Dr. Willerson did =
not=20
produce any evidence that he was an employee of UTHSCH at the time =
of the=20
incident for which suit was filed. See Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 101.001(2) (Vernon =
2005)=20
(defining =E2=80=9Cemployee=E2=80=9D as =E2=80=9Ca person, =
including an officer or agent, who is=20
in the paid service of a governmental unit by competent authority, =
but=20
does not include an independent contractor, an agent or employee =
of an=20
independent contractor, or a person who performs tasks the details =
of=20
which the governmental unit does not have the legal right to =
control.=E2=80=9D).=20
<=
/SPAN>We=20
disagree. Dr. =
Willerson=E2=80=99s affidavit,=20
which he tendered in support of his motion to dismiss under =
section=20
101.106, averred, =E2=80=9CIn August of 2003, I was employed by=20
[UTHSCH]. At all times =
relevant to=20
the issues in this lawsuit, I was a salaried employee of=20
[UTHSCH].=E2=80=9D This =
evidence carried Dr.=20
Willerson=E2=80=99s burden of showing that he was UTHSCH=E2=80=99s =
employee.=20
See Tejada, =
207 S.W.3d=20
at 924 (finding sufficient affidavit and motion=E2=80=99s verified =
allegations=20
that defendants simply were employees of governmental =
unit); Hall v.=20
Provost, 232 S.W.3d 926, 928 (Tex. App.=E2=80=94Dallas 2007, =
no pet.)=20
(although issue of employee status was undisputed in that case, =
noting=20
that defendant=E2=80=99s affidavit averred, =E2=80=9CI am =
currently and continuously have=20
been since 2003, an employee of [the governmental unit], in the =
Department=20
of Surgery.=E2=80=9D).
<=
/SPAN>In=20
response to this affidavit evidence, the Poland parties rely on =
appeal, as=20
they did below, on three documents. First, they cite an =
unauthenticated=20
=E2=80=9Cexplanation of benefits=E2=80=9D statement issued by =
Jessie Poland=E2=80=99s insurer,=20
which designated Dr. Willerson as the =E2=80=9Cprovider=E2=80=9D =
of the medical services=20
and indicated that payment was made to the =
=E2=80=9Cprovider.=E2=80=9D Assuming without=20
deciding that this unauthenticated, unobjected-to document =
constituted=20
competent evidence, it did not refute Dr. Willerson=E2=80=99s =
affidavit testimony=20
because it did not purport to identify who Dr. Willerson=E2=80=99s =
employer was or=20
even whether he was an employee. Second, the Poland parties cite =
the=20
affidavit testimony of UTHSCH=E2=80=99s Health Care Risk Manager =
that =E2=80=9C[n]one of=20
the remaining physicians named in this lawsuit were employees, =
agents,=20
ostensible agents, legal representatives, successors, physicians,=20
residents, fellows, affiliates, or servants of the [UTHSCH] at the =
time of=20
the incident made the basis of this lawsuit.=E2=80=9D However, =
this affidavit was=20
made 22 days after Dr. Willerson had been nonsuited from the =
lawsuit.=20
Third, the Poland parties cite unauthenticated print-outs from =
various=20
websites indicating that Dr. Willerson was the medical director,=20
president-elect, chief of cardiology, or director of cardiology at =
the=20
Texas Heart Institute. Again assuming without deciding that these=20
unauthenticated, unobjected-to documents rose to the level of =
evidence,=20
they did not refute that Dr. Willerson was a paid employee of =
UTHSCH at=20
the relevant time because all were printed in 2006, most contained =
undated=20
content, and some contained a content date post-dating August =
2003.=20
Furthermore, articles indicating that Dr. Willerson had served as =
an=20
officer elsewhere did not controvert Dr. Willerson=E2=80=99s =
testimony because=20
they did not indicate that he was an employee performing medical =
services=20
in those positions or whether those positions excluded his =
employment=20
elsewhere. The documents and affidavit on which the Poland parties =
rely on=20
appeal thus did not raise a fact issue on Dr. Willerson=E2=80=99s =
employment=20
status.
<=
/SPAN>We overrule this challenge under the =
Poland=20
parties=E2=80=99 issue.
<=
/SPAN>3. Whether Dr. Willerson carried his =
burden of=20
showing that he was working within the scope of =
his=20
employment with UTHSCH
<=
/SPAN>The=20
Poland parties next argue in their brief that Dr. Willerson did =
not=20
produce any evidence that the=20
negligent acts or omissions that he was alleged to have committed =
were=20
performed in the scope of his employment with UTHSCH. See=20
Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 101.001(5) (Vernon 2005) (defining =
=E2=80=9Cscope of=20
employment=E2=80=9D as =E2=80=9Cthe performance for a governmental =
unit of the duties of=20
an employee=E2=80=99s office or employment and includes being in =
or about the=20
performance of a task lawfully assigned to an employee by =
competent=20
authority.=E2=80=9D).
<=
/SPAN>We disagree. Dr. Willerson carried his =
burden by=20
affidavit: =E2=80=9CMedical care provided to patients at all times =
relevant=20
hereto, including Jessie Poland, was provided in the course and =
scope of=20
my employment with [UTHSCH].=E2=80=9D See Tejada, 207 =
S.W.3d at 924=20
(finding sufficient affidavit averring that =
=E2=80=9C=E2=80=98[a]ll of my=20
interaction with the patient . . . was within the =
general scope=20
of my employment with UTMB=E2=80=99=E2=80=9D and motion=E2=80=99s =
verified allegations that=20
defendant =E2=80=9Cprovided medical care to Tejada in her official =
capacity as an=20
employee of UTMB=E2=80=9D); Hall, 232 S.W.3d at 928 =
(although issue=20
of scope of employment was undisputed in that case, noting that=20
defendant=E2=80=99s affidavit averred, =E2=80=9CAt all times =
during the care and treatment=20
of Charla Hall, I was acting within the general scope of my =
employment=20
with [the governmental unit].=E2=80=9D); Williams, 199 =
S.W.3d at 465=E2=80=9366=20
(although issue of scope of employment was undisputed in that =
case, noting=20
that defendant doctors=E2=80=99 affidavits each averred that =
=E2=80=9C[a]ll of my=20
interaction with the patient . . . was within the scope of my =
employment with UTMB,=E2=80=9D implying that that evidence =
supported this=20
issue).
<=
/SPAN>Contrary=20
to the Poland parties=E2=80=99 assertions, section 101.106(f) did =
not require that=20
Dr. Willerson use the procedural vehicle of a summary-judgment =
motion or=20
that he meet the strict requirements of affidavits submitted under =
that=20
rule. See Tex. =
Civ. Prac.=20
& Rem. Code Ann. =C2=A7 101.106(f) (not invoking=20
summary-judgment-like procedures and speaking solely in terms of=20
employee=E2=80=99s =E2=80=9Cmotion=E2=80=9D); see also =
Lanphier, 2008 WL 89755, at * 1=20
(reviewing ruling on dismissal motion, rather than =
summary-judgment=20
motion, asserted under section 101.106(f)); Hall, 232 =
S.W.3d at=20
926=E2=80=9327 (same); Turner ,232 S.W.3d at 415 (same); =
Kanlic v.=20
Meyer, 230 S.W.3d 889, 890=E2=80=9391 (Tex. App.=E2=80=94El =
Paso 2007, pet. filed)=20
(same); Clark v. Sell, 228 S.W.3d 873, 873 (Tex. =
App.=E2=80=94Amarillo=20
2007, pet. filed) (same); Sheth v. Dearen, 225 S.W.3d 828, =
829=20
(Tex. App.=E2=80=94Houston [14th Dist.] 2007, no pet.) (same); =
Tejada, 207=20
S.W.3d at 921=E2=80=9322 (same); Williams, 199 S.W.3d at =
463 (same);=20
Phillips v. Dafonte, 187 S.W.3d 669, 671 (Tex. =
App.=E2=80=94Houston [14th=20
Dist.] 2006, no pet.) (same). The Poland parties have cited no =
authority=20
to the contrary, and we have found none.
<=
/SPAN>We=20
overrule this argument under the Poland parties=E2=80=99 =
issue.
<=
/SPAN>4. Whether=20
Dr. Willerson carried his burden of showing that =
UTHSCH was a=20
governmental unit
<=
/SPAN>In their third argument, the Poland =
parties argue=20
that Dr. Willerson did not produce any evidence that UTHSCH was a governmental =
unit.
<=
/SPAN>The=20
Poland parties=E2=80=99 responses to Dr. Willerson=E2=80=99s =
motion to dismiss repeatedly=20
stated or implicitly represented that UTHSCH was a governmental =
unit and=20
that=E2=80=94provided that Dr. Willerson was its employee acting =
within the scope=20
of that employment when he treated Jessie Poland=E2=80=94the TTCA =
waived immunity=20
from suit against UTHSCH =
for Dr.=20
Willerson=E2=80=99s actions, which they described (as they do on =
appeal) as =E2=80=9Cthe=20
improper use of [the] medication=E2=80=9D Coumadin. =
<=
/SPAN>=E2=80=9C[A] true judicial =
admission. . . is a=20
formal waiver of proof usually found in pleadings or the =
stipulations of=20
the parties[,] . . . is conclusive upon the party making =
it,=20
. . . relieves the opposing party=E2=80=99s burden of =
proving the=20
admitted fact, and bars the admitting party from disputing =
it.=E2=80=9D=20
Mendoza v. Fid. & =
Guar. Ins.=20
Underwriters, 606 S.W.2d 692, 694 (Tex. 1980). The admission =
can be=20
contained in =E2=80=9Clive=E2=80=9D motions and responses thereto, =
as well as in=20
petitions and answers. =
See Holy Cross Church =
of God in=20
Christ v. Wolf, 44 S.W.3d 562, =
568 (Tex.=20
2001) (considering judicial admission contained in =
summary-judgment=20
response, counter-motion for summary judgment, and appellate=20
brief); Zeecon =
Wireless=20
Internet, L.L.C. v. McEwen, 212 S.W.3d 764, 767 (Tex. =
App.=E2=80=94Austin=20
2006, no pet.) (noting that judicial admission was contained in =
motion to=20
strike amended answer); Mobil Oil Corp. =
v.=20
Ellender,=20
934 S.W.2d 439, 465 (Tex. App.=E2=80=94Beaumont 1996) (noting that =
judicial=20
admission was contained in motion to restyle case following =
settlement),=20
aff=E2=80=99d in part, rev=E2=80=99d in part on other =
grounds, 968 S.W.2d 917 (Tex.=20
1998). To be a =
judicial=20
admission, the statement must be =E2=80=9Cclear, deliberate, and =
unequivocal.=E2=80=9D=20
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 =
(Tex.=20
2000) (quoting Regency Advantage Ltd. P=E2=80=99ship =
v. Bingo=20
Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996)).=20
<=
/SPAN>Despite=20
its clear, repeated representations that UTHSCH was a governmental =
unit,=20
the Poland =
parties=E2=80=99=20
memorandum below also recited:
Dr. Willerson never even presented =
evidence that=20
[UTHSCH] is a governmental unit. In Clemons v. Citizens Medical =
Center, 54 S.W.3d 463 =
(Tex.=20
App.=E2=80=94Corpus Christi), it was held that before a hospital =
may invoke the=20
doctrine of sovereign immunity, it must establish its status as a =
division=20
of the state, and that a claim of sovereign immunity must have =
supporting=20
evidence. In Clemons, the affidavit of the hospital was =
attached to=20
its motion for summary judgment, showing the details of who =
controls the=20
doctor=E2=80=99s diagnosis and treatment of patients. Dr. =
Willerson has not done=20
so.
This one statement was preceded by a =
discussion as=20
to whether Dr. Willerson had shown that he was UTHSCH=E2=80=99s =
employee, and it=20
was followed by assertions indicating that UTHSCH was a=20
governmental unit and that Dr. Willerson could not assert or =
prevail on=20
the affirmative defense of official immunity from =
liability.
<=
/SPAN>Whatever=20
this one statement quoted in the preceding paragraph meant, it did =
not=20
render the Poland parties=E2=80=99 concessions about =
UTHSCH=E2=80=99s governmental status=20
ambiguous: it was at most a statement that Dr. Willerson =
did not=20
present evidence of UTHSCH=E2=80=99s governmental status; in =
contrast, the other=20
cited statements clearly recognized that UTHSCH was in reality =
a=20
governmental unit. That is, the Poland parties admitted the =
underlying=20
fact that Dr. Willerson had the burden to prove, then at most =
noted that=20
Dr. Willerson had not offered additional evidence to prove the =
fact that=20
they were admitting. Because the underlying fact was judicially =
admitted,=20
Dr. Willerson was relieved of any burden that he might have had to =
offer=20
independent evidence of that fact. See, e.g., Smith v.=20
Altman, 26 S.W.3d 705, 708=E2=80=9309 (Tex. App.=E2=80=94Waco =
2000, pet. dism=E2=80=99d=20
w.o.j.) (=E2=80=9C=E2=80=98In Texas a party may use a formal =
judicial admission made by a=20
party opponent as a substitute for evidence =
. . . .=E2=80=99=E2=80=9D)=20
(quoting 1A R. Ray, Texas =
Practice:=20
Law of Evidence =C2=A7 1127 (3d ed. Supp. =
1986)).
<=
/SPAN>But=20
even if this one statement quoted above could somehow prevent a =
judicial=20
admission from arising as to UTHSCH=E2=80=99s governmental =
status, it is well-established that UTHSCH is =
a=20
governmental unit, and the trial court would have been entitled to =
take=20
judicial notice of that fact (as can we).
<=
/SPAN>We=20
overrule this argument under the Poland parties=E2=80=99 issue. =
<=
/SPAN>5. Whether=20
Dr. Willerson=E2=80=99s official immunity from liability had any =
bearing on the=20
correctness of the trial court=E2=80=99s =
ruling
<=
/SPAN>In=20
their fourth argument, the Poland parties argue that =E2=80=9C[t]he trial court erred in =
dismissing Dr.=20
Willerson because he could only claim official immunity [from =
liability]=20
if [UTHSCH] could claim sovereign immunity, and it could =
not.=E2=80=9D They also=20
argue that Dr. Willerson waived any =E2=80=9Cclaim of official =
immunity=E2=80=9D because=20
he never affirmatively pleaded it in his answer.
<=
/SPAN>Dr.=20
Willerson=E2=80=99s motion to dismiss was based on sections =
101.106(a) and (f),=20
not on the affirmative defense of official immunity from =
liability. As=20
noted above, current section 101.106 is an election-of-remedies =
provision,=20
requiring the plaintiff carefully to select, at the time of the =
suit=E2=80=99s=20
filing, which defendant=E2=80=94the governmental unit or its =
employee=E2=80=94to sue.=20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. =C2=A7 101.106; Williams, 199 =
S.W.3d at=20
465; Villasan, 166 S.W.3d at =
758. In contrast, official immunity from =
liability is=20
an affirmative defense that prevents governmental officials from =
being=20
liable to a claimant when they are acting within the scope of =
their=20
authority in performing their discretionary duties in good=20
faith. See, e.g.,=20
Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004). =
Section=20
101.106(f), which our discussion concerns, does not concern =
official=20
immunity from liability, but is instead an election-of-remedies =
provision=20
requiring the substitution of the governmental employer for the =
employee=20
in certain circumstances.
<=
/SPAN>We=20
overrule this argument under the Poland parties=E2=80=99 =
issue.
<=
/SPAN>6. Whether=20
the rule 11 agreement estopped Dr. Willerson from =
=E2=80=9Cclaiming a section=20
101.106 defense=E2=80=9D
<=
/SPAN>In=20
their final argument under their issue, the Poland parties argue =
that =E2=80=9CDr.=20
Willerson was estopped from claiming a Section 101.106 defense =
based on=20
his Rule 11 agreement.=E2=80=9D Specifically, the Poland parties =
argue that =E2=80=9Cby=20
Dr. Willerson[=E2=80=99s] stating that he has not waived any =
Statute of=20
Limitations defenses, Dr. Willerson thereby waived all other =
defenses.=20
Since he had waived one particular defense, it can be reasonably=20
interpreted . . . that . . . Dr. Willerson was =
waiving=20
all other defenses with one exception noted in the =
agreement.=E2=80=9D (Emphasis=20
in original.)
<=
/SPAN>By=20
that agreement, Dr. Willerson did not waive any potential =
defenses:=20
in fact, the agreement expressly preserved an affirmative=20
defense=E2=80=94that of the statute of limitations. All that the =
agreement did was=20
to toll the statute of limitations and =E2=80=9C[a]ll [Texas Civil =
Practice and=20
Remedies Code] Chapter 74 deadlines.=E2=80=9D Under the language =
of this=20
agreement, the express preservation of one affirmative defense =
cannot=20
reasonably be construed as the abandonment of all other potential =
defenses=20
of any kind whatsoever.
<=
/SPAN>We=20
overrule this final argument under the Poland parties=E2=80=99 =
issue, and we=20
overrule the issue in its entirety.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, =
and=20
Alcala. |