Villasan v. O'Rourke
| Citation | 166 S.W.3d 752 |
| Decision Date | 26 May 2005 |
| Docket Number | No. 09-04-409 CV.,09-04-409 CV. |
| Parties | Antonio J. VILLASAN, M.D., Appellant, v. William O'ROURKE, Individually; Laura O'Rourke, Individually; and Laura O'Rourke, as Next Friend of Brock O'Rourke, Appellees. |
| Court | Texas Supreme Court |
Greg Abbott, Atty. Gen., Barry R. McBee, First Asst. Atty. Gen., Edward D. Burbach, Deputy Atty. Gen. for Litigation, Nelly R. Herrera, Chief Tort Litigation Division, R. Ted Cruz, Solicitor, Sean D. Jordan, Asst. Solicitor Gen., David G. Halpern, Asst. Atty. Gen., Austin, for appellant.
Ronald L. Bair, Amanda S. Hilty, The Bair Law Firm, PC, Houston, for appellees.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
This is a case of first impression and requires that we interpret the amended provisions of section 101.106(e) of the Texas Civil Practice and Remedies Code enacted as a part of the Legislature's tort reform efforts in 2003. See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (Vernon Supp.2005). Section 101.106(e) provides in suits where both the governmental unit and its employee are sued, the suit against the employee immediately be dismissed on motion of the governmental unit. The ultimate issue is whether the trial court erred in denying Dr. Antonio Villasan's motions requesting his dismissal from a suit filed by William O'Rourke and other family members against Dr. Villasan and the University of Texas Medical Branch, Galveston ("UTMB"). Subsidiary to that issue are questions of whether the trial judge had a mandatory duty to dismiss Dr. Villasan pursuant to section 101.106(e) based on the government's filing of a motion to do so, and whether the amendments to section 101.106 apply despite a federal court suit filed by the O'Rourkes prior to the effective date of the amended provisions. Answering the two subsidiary questions in the affirmative leads us to conclude the trial court erred in failing to grant Dr. Villasan's motion to dismiss the claim against him, and accordingly, we reverse and dismiss.
The O'Rourkes sued UTMB and Dr. Villasan, its employee, on September 22, 2003 in state court in Jefferson County, Texas. The O'Rourkes complain that Dr. Villasan negligently failed to diagnose William O'Rourke's cancer during a period when he received medical treatment while incarcerated at F.C.C. Beaumont Camp, a federal prison operated by the Federal Bureau of Prisons.
On February 17, 2004, UTMB filed a motion to dismiss and sever based on Civil Practice and Remedies Code section 101.106(e) that provides, "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 Ann. § 101.106(e) (Vernon Supp.2005). The O'Rourkes responded to UTMB's motion by filing their First Amended Original Petition, omitting UTMB as a party, and leaving Dr. Villasan as the sole defendant.
Subsequently, on May 17, 2004, Dr. Villasan filed a motion to dismiss, arguing that because he was an employee of UTMB and because UTMB filed a motion to dismiss, the trial court had a mandatory duty to dismiss him. On June 28, 2004, Dr. Villasan filed an amended request to dismiss and alternatively, a motion for summary judgment, re-asserting that section 101.106(e) mandated the trial court's dismissal of the O'Rourkes' claims. The O'Rourkes responded to Dr. Villasan's amended motion, arguing that: (1) Dr. Villasan's motion was moot because they dismissed UTMB; (2) Dr. Villasan could not rely on the statute entitling the government to have suits against its employees dismissed; (3) section 101.106(e) of the Texas Civil Practice and Remedies Code (hereinafter "Code") violated Article I, Section 13, referred to as the open courts provision of the Texas Constitution; and (4) their prior suit against Dr. Villasan for negligence in federal court filed on May 29, 2003 made the amendments to section 101.106(e) inapplicable to their state suit filed on September 22, 2003. As evidence of the federal suit, the O'Rourkes attached a copy of the first page of the complaint filed in federal court.
On August 30, 2004, the O'Rourkes filed their Second Amended Original Petition, but made no material changes in any of their negligence allegations. On that same date, the trial court conducted a hearing and orally announced that it intended to deny the relief requested by Dr. Villasan. On September 9, 2004, the trial court entered its written order denying Dr. Villasan's requested dismissal and request for summary judgment, without entering findings of fact or conclusions of law.
Because it is relevant to the resolution of the questions presented, we set out the full text of Code section 101.106 under which Dr. Villasan asserts a right to have the claims against him dismissed:
§ 101.106. Election of Remedies
(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 unit regarding the same subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.
(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
(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.
(f) 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 Ann. § 101.106 (Vernon Supp.2005).
Revisions to this Code section in 2003 were part of a comprehensive effort by the Legislature to reform the tort system in Texas and part of a bill commonly referred to as House Bill Four. With respect to litigation against governmental entities, the revisions seek to simplify litigation by advancing to the filing of the original petition the plaintiff's final decision regarding whether the government official acted in the general scope of employment, rather than allowing plaintiffs to pursue alternative theories regarding the official's employment status through the trial. The statute allows 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. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f). The statute allows the government, when both the government and the employee are sued, to force the plaintiff to drop the employee from the suit. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e). All of these provisions, together, create a procedural right. At the election of the government or its employee, the respective defendant may force the plaintiff to proceed in Texas Tort Claims Act ("TTCA")1 (1) suits against the governmental entity alone in three possible circumstances: (1) when the suit is initially filed against the governmental agency alone; (2) when the suit is initially filed against both governmental agency and its employees; and (3)when the suit is initially filed against the government employee when the employee's conduct is alleged to have been within his scope of employment. Id. at § 101.106.
By filing an amended petition dropping UTMB as a defendant and leaving Dr. Villasan as the sole defendant, the O'Rourkes attempt to avoid the clear intent of the statute. We hold that under Code section 101.106, the governmental agency perfects the statutory right to a dismissal of its employee upon the filing of a motion to dismiss, and the employee may subsequently rely on the duty created by the motion to require the trial judge to dismiss the claims against him. Subsequent amended pleadings by the plaintiff filed after the government's filing of its motion to dismiss the employee do not moot the right created by the filing of the motion under section 101.106.
The O'Rourkes argue that their amended petition filed after the government filed its motion to dismiss, but prior to the hearing on the motion, effectively dismissed the governmental entity as of the date it was filed, and, therefore, the parties are in the position they would have been in if the original petition had never been filed. Among other cases, they cite as authority for this argument Chamberlain v. McReight, 713 S.W.2d 372, 374 (Tex.Civ.App.-Beaumont 1986, writ ref'd n.r.e.). Chamberlain began as a suit against an oil company and its owner, and, by amended petition, the plaintiff omitted the owner. The analysis in Chamberlain relies on Rule 65 of the Texas Rules of Civil Procedure promulgated by the Texas Supreme Court, and not a legislatively...
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