Hintz v. Lally, No. 14-08-00635-CV (Tex. App. 11/19/2009)

• Court: Texas Court of Appeals
• Writing for the Court: William J. Boyce
• Decision Date: 19 November 2009
• Docket Number: No. 14-08-00635-CV.,14-08-00635-CV.
• Citation: Hintz v. Lally, No. 14-08-00635-CV (Tex. App. 11/19/2009), No. 14-08-00635-CV. (Tex. App. Nov 19, 2009)
• Parties: SHERYL HINTZ, AS NEXT FRIEND FOR DONALD HINTZ, JR., Appellant, v. KEVIN LALLY, M.D., Appellee.

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SHERYL HINTZ, AS NEXT FRIEND FOR DONALD HINTZ, JR., Appellant, v. KEVIN LALLY, M.D., Appellee.

No. 14-08-00635-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Opinion filed November 19, 2009.

On Appeal from the 334th District Court, Harris County, Texas, Trial Court Cause No. 2006-51857.

Affirmed.

Panel consists of Chief Justice HEDGES and Justices ANDERSON and BOYCE.

OPINION

WILLIAM J. BOYCE, Justice.

Sheryl Hintz, as next friend for Donald Hintz, Jr., appeals from the trial court's order granting a motion to dismiss filed by appellee Kevin Lally, M.D. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (f) (Vernon 2005). We affirm.

BACKGROUND

Dr. Lally operated on Donald Hintz in November 2002 to remove a swollen lymph node. Dr. Lally was employed full time as vice chairman of the Department of Surgery and chief of the Division of Pediatric Surgery at the University of Texas Health Science Center at Houston ("UTHSC").

Sheryl Hintz filed suit against Dr. Lally on August 16, 2006, alleging that he negligently removed Donald's spinal accessory nerve during the 2002 surgical procedure. Hintz sued only Dr. Lally in the original petition; she did not sue UTHSC.

Dr. Lally timely filed his original answer on September 21, 2006, in which he asserted a general denial. Dr. Lally also pleaded that Athis suit is based on Defendant's alleged conduct within the general scope of his employment with The University of Texas Health Science Center at Houston and this case could have been brought against the governmental unit." See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).

On November 7, 2006, Dr. Lally filed a motion to dismiss Hintz's suit with prejudice pursuant to section 101.106(f) on grounds that "[t]his suit could have been brought against UTHSC . . . ." Dr. Lally submitted an affidavit in support of his motion to dismiss in which he stated:

When I treated Donald Hintz, Jr., I was employed as a physician at UTHSC and was wholly compensated by UTHSC. My treatment of Mr. Hintz was performed in my capacity as an employee of UTHSC and was within the general scope of my employment with UTHSC. The surgery which I performed on Donald Hintz, Jr., involved the use of surgical equipment in performing the biopsy which is the subject of Plaintiff's lawsuit.

Dr. Lally's motion to dismiss asserted that Hintz's claims involve injuries allegedly caused by a condition or use of tangible personal property. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005). Dr. Lally asserted that his Ause of surgical instruments would meet the definition of tangible personal property. Accordingly, this suit could have been brought against Dr. Lally's employer, The University of Texas Health Science Center at Houston." Dr. Lally also included a notice setting a hearing on his motion to dismiss on December 4, 2006.

Hintz filed a first amended petition on November 30, 2006, which again named Dr. Lally as the only defendant. Hintz alleged therein that Dr. Lally Awas an independent contractor with respect to the actions made the basis of this suit." Hintz simultaneously filed a response to Dr. Lally's motion to dismiss under section 101.106(f) in which she asserted that (1) Dr. Lally's motion Aoffers only a conclusory statement that Dr. Lally is an employee of UTHSC and not an independent contractor;" (2) she had been afforded no opportunity to conduct discovery; (3) section 101.106 violates the Texas Constitution's open courts provision; and (4) Athe negligent use of a surgical instrument is not a use of tangible property such that the claim could have been brought against a government entity under the Texas Tort Claims "ct."

Hintz filed a second amended petition on December 4, 2006, in which she voluntarily dismissed Dr. Lally and named UTHSC as the sole defendant. Accordingly, no hearing was held on Dr. Lally's November 7, 2006 motion to dismiss and the trial court did not sign an order addressing that motion.

UTHSC filed its original answer on January 12, 2007, in which it asserted a general denial; it also pleaded Aits claim to and defense of sovereign immunity and the limits, exemptions and exclusions of the Tort Claims "ct."

On July 2, 2007, UTHSC filed a first amended original answer in which it pleaded that subject matter jurisdiction was lacking because Hintz failed to provide the requisite statutory notice. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (Vernon 2005) (AA governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred."). UTHSC simultaneously filed a plea to the jurisdiction and motion to dismiss predicated on lack of notice. See Tex. Gov't Code Ann. § 311.034 (Vernon Supp. 2009) ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity."). The plea to the jurisdiction and motion were supported by an affidavit signed by UTHSC's risk manager, Catherine R. Thompson. In her affidavit, Thompson stated that she had found no record of any notice of claim received from or on behalf of Sheryl Hintz as next friend of Donald Hintz within six months of the November 2002 surgery.

Hintz filed a response to UTHSC's plea and motion, and an alternative motion to withdraw her voluntary dismissal of Dr. Lally. Following a hearing, the trial court signed an order on October 31, 2007 granting UTHSC's plea and motion and denying Hintz's motion to withdraw her dismissal of Dr. Lally.

On November 19, 2007, Hintz timely filed a motion for new trial, motion to modify or vacate judgment, and a motion for leave to file a third amended petition naming Dr. Lally as the only defendant. In an order signed on November 30, 2007, the trial court denied Hintz's motion for new trial and motion to vacate judgment but granted her motion for leave to file a third amended petition. That petition was deemed filed on November 30, 2007.

Hintz filed a fourth amended petition naming Dr. Lally as the sole defendant on December 27, 2007. Dr. Lally filed an amended answer on January 14, 2008 in which he (1) asserted a general denial; (2) invoked section 101.106(a), under which bringing suit against a governmental unit Aconstitutes an irrevocable election and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit;" and (3) again invoked section 101.106(f). Dr. Lally filed his second motion to dismiss on February 20, 2007 based on sections 101.106(a) and (f). Hintz filed a response on April 1, 2008 and a fifth amended petition on April 8, 2008 naming Dr. Lally as the only defendant. Hintz also filed a supplemental response on April 8, 2008, in which she contended that sections 101.106(a) and (f) violate the open courts provision of the Texas Constitution.

The trial court granted Dr. Lally's second motion to dismiss in an order signed on April 11, 2008. The order states, "The face of the record is unequivocal that the original dismissal of Kevin Lally, M.D. constituted a Tex. Civ. Prac. & Rem. Code ' 101.106(f) dismissal . . . under the >election' provision of the statute (see Plaintiff's Second Amended Petition), [and] the statute makes that election irrevocable." Hintz timely filed a notice of appeal from the April 11, 2008 dismissal order.

STANDARD OF REVIEW

Generally, we review a trial court's order on a motion to dismiss under an abuse of discretion standard. Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex. App.CHouston [14th Dist.] 2008, pet. denied). However, the proper standard of review is determined by the substance of the issue to be reviewed rather than the type of motion to which the trial court's order pertains. See In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (to determine proper standard of review, Awe must determine whether the [issue] is a question of fact or of law").

Matters of statutory construction are reviewed de novo. City of San Antonio v. Boerne, 111 S.W.3d 22, 25 (Tex. 2003). Here, Dr. Lally's motion to dismiss presented an issue of statutory interpretation under section 101.106 of the Texas Tort Claims Act. Thus, the trial court's order dismissing Dr. Lally pursuant to section 101.106(f) is subject to de novo review on appeal.

"In construing a statute, our primary goal is to determine and effectuate legislative intent." Grimes County Bail Bond Bd. v. Ellen, 267 S.W.3d 310, 316 (Tex. App.CHouston [14th Dist.] 2008, pet. denied) (citing In re Canales, 52 S.W.3d 698, 702 (Tex. 2001) (orig. proceeding)). "If a statute is clear and unambiguous, we need not resort to rules of construction." Id. "We may consider, among other things, the statute's objectives and the consequences of a particular construction." Id. "We read the statute as a whole and interpret it to effectuate every part." Id. (citing City of Houston v. Jackson, 42 S.W.3d 316, 319-20 (Tex. App.CHouston [14th Dist.] 2001, pet dism'd w.o.j.)).

ANALYSIS

Hintz raises four issues on appeal, contending that (1) the trial court erred in dismissing her claims against Dr. Lally under section 101.106(f); (2) the substitution of UTHSC under section 101.106(f) does not bar suit against Dr. Lally under section 101.106(a) following UTHSC's dismissal for lack of subject matter jurisdiction; (3) suit against UTHSC could not have been brought under section 101.106(f) because the injury made the basis of the suit did not manifest itself until after expiration of the notice period; and (4) section 101.106(f) violates the Texas Constitution's open courts provision by requiring substitution of a party over which the court had no jurisdiction. An overview of section 101.106 will put Hintz's arguments in context.

I. Election of Remedies Under the Tort Claims Act

The Texas Tort Claims Act establishes a limited waiver of immunity and caps damages for certain suits against governmental entities. The Act...