Kachikwu Illoh, M.D. v. Damita Carroll and Karen Butler, Individually and as Representatives of the Estate of James Carroll

Affirmed and Opinion filed August 5, 2010.

In The

Fourteenth Court of

Appeals

NO. 14-09-01001-CV

Kachikwu Illoh, M.D. , Appellant

V.

Damita Carroll and Karen

Butler, Individually and as Representatives of the Estate of James Carroll , Appellees

On Appeal from the 215th

District Court

Harris County, Texas

Trial Court Cause No. 2009-19832

OPINION

Appellant,

Kachikwu Illoh, M.D., files this interlocutory appeal from the trial court’s

orders denying his motion to dismiss and separately filed plea to the

jurisdiction. Dr. Illoh contends the trial court erred by denying his motion

to dismiss and his plea to the jurisdiction. We affirm the trial court’s order

denying Dr. Illoh’s motion to dismiss but lack jurisdiction to consider the

trial court’s denial of his plea to the jurisdiction.

I. Background

On

January 15, 2007, James Carroll was admitted to Memorial Hermann Hospital. Dr.

Illoh, who was employed by governmental-entity University of Texas Health

Science Center at Houston (“UTHSCH”), was Mr. Carroll’s attending physician

until January 22. Mr. Carroll was discharged from the hospital on February 16.

Subsequently, he died on November 29, 2007, at a separate hospital. On March

31, 2009, Damita Carroll and Karen Butler, individually and as representatives

of Mr. Carroll’s estate (“appellees”), filed suit against Dr. Illoh and another

doctor. Appellees allege that Mr. Carroll died from septicemia caused by bed

sores which developed during his treatment at Memorial Hermann. Specifically,

appellees claim Mr. Carroll’s death was caused by Dr. Illoh’s negligence in (1)

“failing to implement appropriate care,” (2) “treating a patient without

possessing the requisite skill,” (3) “failing to collaborate with Mr. Carroll’s

family,” (4) “failing to properly supervise his care,” and (5) “failing to

obtain a reasonable and necessary consult.”

Dr.

Illoh filed a motion entitled “. . . Plea to the Jurisdiction and Motion to

Dismiss, or in the Alternative, Motion for Summary Judgment” in which he argued

that the trial court lacked subject-matter jurisdiction because appellees

failed to file suit within two years of Dr. Illoh’s treatment of Mr. Carroll

(“statute-of-limitations motion”). Additionally, Dr. Illoh filed a motion to

dismiss in which he argued that appellees were required to amend their petition

to substitute Dr. Illoh for UTHSCH pursuant to the election-of-remedies

provision in section 101.106(f). Tex. Civ. Prac. & Rem. Code Ann. §

101.106 (f) (Vernon 2005). The trial court denied both motions, and Dr. Illoh

timely filed this interlocutory appeal.

II. Texas Civil Practice and Remedies Code Section 101.106( f )

We begin

with Dr. Illoh’s first and second issues in which he contends the trial court

erred by denying his motion to dismiss pursuant to section 101.106(f). We have

jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies

Code, which allows interlocutory appeals from denials of motions to dismiss

pursuant to section 101.106. See Tex. Civ. Prac.

& Rem. Code Ann. § 51.014 (a)(5) (Vernon 2008); Phillips v. Dafonte , 187

S.W.3d 669 , 674–75 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

A. Standard of

Review

Generally,

we review a trial court’s order pertaining to a motion to dismiss under an

abuse-of-discretion standard. Singleton v. Casteel , 267 S.W.3d 547, 550

(Tex. App.—Houston [14th Dist.] 2008, pet. denied). However, the proper

standard of review is determined by the substance of the issue rather than the

type of motion considered by the trial court. See In re Doe , 19 S.W.3d

249, 253 (Tex. 2000) (to determine proper standard of review, “we must

determine whether the [issue] is a question of fact or of law”). Dr. Illoh’s motion to dismiss presented an issue of statutory

interpretation under section 101.106 of the Texas Tort Claims Act. Matters of statutory

construction are reviewed de novo. City of San Antonio v. City of Boerne ,

111 S.W.3d 22, 25 (Tex. 2003).

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.—Houston [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

try to give effect to all the words of a statute, treating none of its language

as surplusage when reasonably possible. Phillips v. Bramlett , 288 S.W.3d

876, 880 (Tex. 2009). We presume that every word of a statute has been included or excluded for a reason. Old Am. County Mut. Fire Ins. Co. v. Sanchez ,

149 S.W.3d 111, 115 (Tex. 2004).

B. Election of Remedies

under the Texas Tort Claims Act

The

Texas Tort Claims Act (“TTCA”) establishes a limited waiver of immunity for

certain suits against governmental entities. The TTCA waives governmental

immunity to the extent liability arises from the “use of a motor-driven vehicle

or motor-driven equipment,” or from “a condition or use of tangible personal or

real property.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005).

To prevent litigants from circumventing the limits of the TTCA by suing

government employees instead of governmental entities, the legislature provided

several election-of-remedies provisions in section 101.106, including the

following:

(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 (e), (f) (emphasis added). Therefore, to obtain

dismissal under section 101.106(f), a government employee must establish the

claims against him (1) are based on conduct performed within the general scope

of his employment and (2) could have been brought under the TTCA against his

government employer.

C. Analysis

In his

motion to dismiss, Dr. Illoh presented evidence supporting his contention that appellees’

negligence suit is based on conduct that occurred while he was acting within

the general scope of his employment with UTHSCH. In response, appellees argued

that Dr. Illoh failed to establish the second prong of section 101.106(f)

because he did not prove their claims could have been brought against UTHSCH.

According to appellees, Dr. Illoh can only establish this prong by proving

their negligence suit falls within the TTCA’s limited waiver of immunity for

claims arising from the condition or use of personal property. Indeed, in 2006,

we held that government doctors were not entitled to dismissal under section 101.106(f)

because they failed to establish that plaintiff’s claims could be brought

against the government employer under the TTCA’s waiver of immunity. See

Phillips , 187 S.W.3d at 675 . Undaunted, Dr. Illoh argued below and

now argues on appeal that the Texas Supreme Court’s 2008 decision in Mission

Consolidated Independent School District v. Garcia , 253 S.W.3d 653 (Tex. 2008),

effectively overruled the plaintiff’s burden to show a waiver of sovereign

immunity as recognized in cases such as Phillips . [1]

In Garcia ,

the plaintiffs filed suit against a school district and its superintendent, asserting,

among other things, common-law negligence claims. Id. at 654 . The

trial court denied the school district’s motion to dismiss pursuant to section

101.106. Id. at 655 . In determining that section 101.106 did not

apply, the court of appeals opined that only 101.106(e) could apply when a

governmental entity and its employee were sued at the same time. Mission

Consol. Indep. Sch. Dist. v. Garcia , 166 S.W.3d 902 , 904–05 (Tex.

App.—Corpus Christi 2005), aff’d in part, rev’d in part , 253

S.W.3d 653 (Tex. 2008). The court of appeals held that section 101.106(e) did

not apply, reasoning that plaintiffs’ common-law negligence claims were not brought

“under this chapter” because they did not fall within the TTCA’s waiver of

immunity. Id. at 905. The supreme court rejected this narrow

interpretation of the phrase “under this chapter,” concluding: “Because the

[TTCA] is the only, albeit limited, avenue for common-law recovery against the

government, all tort theories alleged against a governmental unit, whether it

is sued alone or together with its employees, are assumed to be ‘under [the

TTCA]’ for purposes of section 101.106.” Garcia , 253 S.W.3d at

659 . The supreme court also noted, however, that it was not called upon to

interpret the phraseology of section 101.106(f):

Section

101.106(f) contains a slightly different phrase. It states that the suit

against the employee is to be dismissed when the suit “could have been brought

under this chapter against the governmental unit.” The interpretation of

section 101.106(f) is not before us here and neither party argues that it

applies to this case.

Id. at 660 n.5.

While

acknowledging the supreme court’s assertion that it was not asked to interpret the

language in section 101.106(f), Dr. Illoh argues Garcia ’s interpretation

of the phrase “under this chapter” is equally applicable to section 101.106(f).

He contends appellees’ negligence theories “could have been brought under” the

TTCA for purposes of section 101.106(f), regardless of whether the TTCA

actually provides a waiver of immunity for such theories, and he contends the

legislative intent behind section 101.106 supports this position. He argues the

legislature, by amending section 101.106, intended to persuade litigants to

bring suit against governmental entities instead of suing government employees

for the results of their work. He argues that the legislature’s goal in

section 101.106(f) includes expediting the litigation process by forcing litigants

to choose whether to sue a governmental entity or its employee when the employee

seeks dismissal. Finally, he argues that the amendments were intended to prevent

scenarios where the trial court must determine whether a government employee

was sued in his individual or official capacity.

We have

no doubt the legislature contemplated protection of government employees when

it amended section 101.106. See id. at 656–57. Nevertheless, the

legislature chose to include the phrase “could have been brought” in section 101.106(f),

indicating that it did not intend for automatic dismissal of every claim filed

against a government employee based on conduct he performed within the scope of

his employment, but only for those claims that “could have been brought under

[the TTCA] against the governmental unit . . . .” Tex. Civ. Prac. & Rem.

Code Ann. § 101.106 (f). We must give effect to the statutory language selected

by the legislature and presume the phrase “could have been brought” was

included in subsection (f) and excluded from other subsections for a reason. See

Phillips , 288 S.W.3d at 880 ; Old Am. County , 149 S.W.3d at

115 . Clearly, suit can only be brought against a governmental entity when

there is a waiver of immunity from suit. See Wichita Falls State Hosp. v.

Taylor , 106 S.W.3d 692, 696 (Tex. 2003) (“Immunity from suit prohibits

suits against the State unless the State expressly consents to the suit.”). By

requiring a government employee to prove the plaintiff’s claims “could have

been brought” against his government employer, the legislature intended section

101.106(f) to apply only when the government employer has waived immunity. Because

of the additional language in section 101.106(f), it is understandable that the

supreme court specifically noted in Garcia that it was not interpreting section

101.106(f).

In the

short time since Garcia was issued, two courts of appeals have applied

the supreme court’s interpretation of section 101.106(e)’s “under this chapter”

language to section 101.106(f)’s “could have been brought under this chapter”

language. See Kelemen v. Elliott , 260 S.W.3d 518 , 523–24 (Tex.

App.—Houston [1st Dist.] 2008, no pet.); Castro v. McNabb , ---

S.W.3d ---, No. 08-07-00074-CV, 2009 WL 3462982, at *7 (Tex. App.—El Paso Oct.

28, 2009, no pet.). However, the majority of courts of appeals have declined

to reach a similar conclusion. See Menefee v. Medlen , --- S.W.3d

---, No. 02-09-440-CV, 2010 WL 2555643 , at *4–7 (Tex. App.—Fort Worth June 24,

2010, no pet. h.); Reedy v. Pompa , 310 S.W.3d 112 , 117–19 (Tex.

App.—Corpus Christi 2010, pet. filed); Lieberman v. Romero , No.

05-08-01636-CV, 2009 WL 3595128 , at *2 (Tex. App.—Dallas Nov. 3, 2009, pet.

filed) (mem. op.); see also Leonard v. Glenn , 293 S.W.3d 669 , 681–85

(Tex. App.—San Antonio 2009, pet. filed) (determining, without reference to Garcia ,

that government employees need to show claims could have been brought against

government employer under TTCA’s limited waiver of immunity). [2]

We believe those courts declining to apply Garcia to section 101.106(f)

offer persuasive reasoning.

The

Corpus Christi Court of Appeals held,

[T]he

phrase “could have been brought” [in section 101.106(f)] modifies the phrase

“under this chapter.” We conclude the phrase “could have been brought”

unambiguously invokes the Tort Claims Act’s limited waiver of immunity from

suit and liability, and the Texas Supreme Court [in Garcia ] did not

intend to undo the scores of opinions holding otherwise.

Reedy , 310 S.W.3d at 119 (citation

omitted).

The Fort

Worth Court of Appeals reasoned: “[By] giving the language of subsection (f)

its plain meaning, a suit that ‘could have been brought under this chapter

against a governmental unit’ necessarily means a suit that falls within the

TTCA’s limited waiver of sovereign immunity.” See Menefee , 2010 WL

2555643, at *6 . Construing section 101.106(f) to require a government employee

to prove the claims asserted against him are within the TTCA’s waiver of

immunity also “avoids an absurd consequence,” because “requiring a plaintiff to

dismiss the employee and to sue a governmental unit when the plaintiff’s claims

do not fall within the TTCA’s limited waiver of immunity . . . would constitute

a statutory mandate requiring a plaintiff to file an unmeritorious suit.” Id.

Accordingly,

we agree with those courts declining to apply Garcia ’s interpretation of

section 101.106(e) to section 101.106(f). Furthermore, “[b]ecause the supreme

court has neither addressed subsection 101.106(f) nor overruled the prior cases

out of this Court addressing that section, we conclude we are bound by our own

Court’s precedent.” Lieberman , 2009 WL 3595128 , at *2. A government

employee seeking dismissal under section 101.106(f) must prove the claims

asserted against him could have been filed against his government employer

because they fall within the TTCA’s limited waiver of immunity. See Phillips , 187

S.W.3d at 675 . Because Dr. Illoh has failed to fulfill this requirement, we overrule

his first issue and affirm the trial court’s order denying his motion to

dismiss.

In his

second issue, Dr. Illoh contends the trial court erred by refusing to dismiss

this suit because appellees failed to amend their petition to include UTHSCH

within thirty days after he filed a motion to dismiss under section

101.106(f). Because we conclude Dr. Illoh did not establish the applicability

of section 101.106(f), we overrule his second issue.

III. Interlocutory Order Denying Plea to the Jurisdiction

In his

third issue, Dr. Illoh contends the trial court erred by denying his plea to

the jurisdiction. In his plea, Dr. Illoh argued that the trial court lacked

jurisdiction over this case because appellees filed suit after the expiration

of the two-year limitations period prescribed by section 74.251 of the Texas

Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code

Ann. § 74.251 (Vernon 2005). Appellees argue in their response brief that the

trial court’s interlocutory order denying Dr. Illoh’s plea to the jurisdiction

is not appealable.

Dr.

Illoh contends we have jurisdiction over this issue pursuant to section

51.014(a)(8) of the Texas Civil Practice and Remedies Code, allowing for

interlocutory appeal of a trial court’s order granting or denying a governmental

unit’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem.

Code Ann. § 51.014 (a)(8) (Vernon 2008). However, section 51.014(a)(8) is

inapplicable because Dr. Illoh is not a governmental unit. See Young v.

Villegas , 231 S.W.3d 1 , 6–7 (Tex. App.—Houston [14th Dist.] 2007,

pet. denied). Even if section 51.014(a)(8) is applicable to government

employees, an interlocutory appeal would not be permitted. Dr. Illoh’s

contention that appellees failed to file suit within the limitations period prescribed

in section 74.251 does not raise issue regarding the trial court’s

subject-matter jurisdiction; instead, it is an affirmative defense. See

Montgomery County v. Fuqua , 22 S.W.3d 662, 668 (Tex. App.—Beaumont

2000, pet. denied) (“Section 51.014(a) . . . does not authorize us to hear an

appeal based on a statute of limitations defense”). “[A]n interlocutory appeal

cannot be taken from the denial of a plea to the jurisdiction that does not

raise an issue that can be jurisdictional.” Tex. Dep’t of Criminal Justice

v. Simons , 140 S.W.3d 338, 349 (Tex. 2004).

Additionally,

Dr. Illoh may not appeal an interlocutory order pursuant to section

51.014(a)(5), which, as explained above, permits a government employee to file

an interlocutory appeal from an order denying a motion for summary judgment

based on immunity, because Dr. Illoh’s plea to the jurisdiction is predicated

on the statute of limitations under section 74.251, not immunity. See

Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5).

Dr.

Illoh also contends we have jurisdiction because appellees failed to send him

timely notice of their claims, an issue he argues is a challenge to the trial

court’s subject-matter jurisdiction. Dr. Illoh argued and presented evidence

in his plea to the jurisdiction that the limitations period under section

74.251 was not tolled because appellees did not comply with the notice

requirements prescribed by section 74.051. See Tex. Civ. Prac. &

Rem. Code Ann. § 74.051 (Vernon 2005). “Statutory prerequisites to a suit,

including the provision of notice, are jurisdictional requirements in all suits

against a governmental entity .” Tex. Gov’t Code Ann. § 311.034 (Vernon

Supp. 2009) (emphasis added). As expressed above, Dr. Illoh is not a

governmental entity. Moreover, Dr. Illoh has not cited persuasive authority

supporting his contention that notice pursuant to section 74.051 is a

jurisdictional requirement under these facts.

Accordingly,

we lack jurisdiction to review the trial court’s order denying Dr. Illoh’s plea

to the jurisdiction.

IV. Conclusion

We affirm

the trial court’s order denying Dr. Illoh’s motion to dismiss but lack

jurisdiction to consider the trial court’s order denying Dr. Illoh’s plea to

the jurisdiction.

/s/ Charles

W. Seymore

Justice

Panel consists of Justices Yates,

Seymore, and Brown.

[1] Before Garcia , several courts of appeals

interpreted section 101.106(f) to require a showing that the plaintiff’s claims

were within the TTCA’s limited waiver of immunity (including those courts that

have since applied Garcia to section 101.106(f), see infra ). See,

e.g. , Hall v. Provost , 232 S.W.3d 926, 928 (Tex. App.—Dallas 2007,

no pet.); Kanlic v. Meyer , 230 S.W.3d 889 , 893–94 (Tex. App.—El Paso

2007, pet. denied); Clark v. Sell ex rel. Sell , 228 S.W.3d 873,

875 (Tex. App.—Amarillo 2007, pet. filed); Williams v. Nealon , 199

S.W.3d 462 , 464–67 (Tex. App.—Houston [1st Dist.] 2006, pet. filed); Franka

v. Velasquez , 216 S.W.3d 409, 412 (Tex. App.—San Antonio 2006, pet.

granted).

[2]

The supreme court has granted review of the issue of whether the “could have

been brought under this chapter” language in section 101.106(f) requires a

government employee to prove the claims meet the TTCA’s waiver of immunity. See

Franka , 216 S.W.3d at 413 (petition for review granted on

April 18, 2008).