Texas Supreme Court holds a change in pleadings cannot defeat a sec. 101.106 motion to dismiss
University of Texas Health Science Center of Houston v Rios, 16-0836 (Tex. December 15, 2017)
This is a Texas Tort Claims Act (“TTCA”) case involving §101.106(e) where the Plaintiff sued both the entity and employees. The Texas Supreme Court held the employee’s right to “immediate dismissal” is triggered upon the filing of the motion to dismiss, regardless of subsequent pleading amendments.
Dr. Rios was a first-year resident whose relationship with the University’s faculty physicians became strained. Rios sued the University along with faculty physicians Drs. Fuentes, Patel, Smalling, and four others (the “Doctors”). Attorney General answered for the defendants and moved to dismiss the Doctors under §101.106(e). Before the court ruled, Rios amended his petition and dropped his tort claims against the University, leaving only the Doctors under tort claims. He kept his claims against the University for breach of contract. The trial court dismissed the contract claims but denied the motion as to the Doctors. The University (since it filed the motion), appealed on behalf of the Doctors. The Court of Appeals affirmed and the University sought a petition with the Texas Supreme Court.
The Court first held an entity’s immunity is not waived for the acts of an independent contractor under the TTCA. Rios alleged as fact that the University acted “through” the Doctors in tortiously interfering with his employment relationships. To establish a waiver, such actions must be done by an “employee” else there is no waiver. Assuming Rios intended to plead a viable claim, his allegation was a judicial admission. Further, the factual allegations in the pleadings are those of employees, not contractors. The subjective intent of the individual acting is not relevant to the determination of whether they are employees; the connection between their job duties and allegedly tortious conduct is what controls and it is an objective analysis. As a result, Rios sued the Doctors as “employees” of the University, so §101.106(e) is applicable. Section 101.106 requires a plaintiff to decide on a theory of tort liability before suit is even filed. A plaintiff must “decide at the outset…” who to sue. The decision is “an irrevocable election at the time suit is filed.” The Court recognized that under Texas Civil Rule of Procedure 65, an “amended” pleading replaces the original as if it did not exist. However, it is the filing of the motion to dismiss, not its specific content, which triggers the right to dismissal and Rule 65 does not nullify that. Additionally, when a rule of procedure (i.e. Rule 65) conflicts with a statute (§101.106) the statute controls. As a result, the Doctors were entitled to be dismissed at the moment the University filed its motion.