REVERSE and RENDER; and Opinion Filed October 27, 2016.




                                           Court of Appeals
                                                           S   In The


                                    Fifth District of Texas at Dallas
                                                         No. 05-16-00325-CV

                                JESSICA D. LEE, M.D., Appellant
                                             V.
                        LOIS HUNTER, INDIVIDUALLY AND ON BEHALF OF
                       THE ESTATE OF JAMES HUNTER, DECEASED, Appellee

                                 On Appeal from the 101st Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. DC-14-02393

                                          MEMORANDUM OPINION
                                     Before Justices Fillmore, Brown, and O'Neill 1
                                              Opinion by Justice Brown
            In this interlocutory appeal, Jessica D. Lee, M.D., appeals the trial court’s denial of her

motion for summary judgment. In a single issue, Lee contends the trial court erred in failing to

dismiss a medical negligence case against her under section 101.106(f) of the Texas Tort Claims

Act. We agree. Accordingly, we reverse the trial court’s order and render judgment dismissing

the plaintiff’s claims against Lee.

          Appellee Lois Hunter, individually and on behalf of the estate of James Hunter, deceased,

sued Lee. As alleged in Hunter’s original petition, on February 2, 2012, her son James was

admitted to Parkland Hospital, where he was diagnosed with a stroke. He remained in the

hospital for treatment. On February 29, 2012, James complained of severe hip and leg pain. He

   1
       The Hon. Michael J. O'Neill, Justice, Assigned.
died in the hospital on March 1, 2012, from a pulmonary emboli. Hunter asserted that Lee

provided care to her son from the time he complained of hip and leg pain until his death. Hunter

alleged that Lee’s negligence proximately caused her son’s injuries and death and sought

survival, wrongful death, and punitive damages. 2

          Lee answered and moved to dismiss Hunter’s suit against her under section 101.106(f) of

the tort claims act. That section provides:

          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(f) (West 2011). Lee asserted she was entitled to

dismissal because Hunter’s petition alleged conduct that was within the scope of Lee’s

employment with a governmental unit, the University of Texas Southwestern Medical Center at

Dallas (UTSWMC), and the case could have been brought against her employer. Lee requested

that UTSWMC be named in the lawsuit in her place within thirty days of the filing of the motion.

          After more than thirty days, Lee moved for summary judgment on grounds she was

entitled to dismissal under section 101.106(f). As summary judgment evidence, Lee provided

her affidavit, the affidavit of the Vice President and Chief of the Office of Human Resources for

UTSWMC, a Memorandum of Appointment for 2011-2012, and her W-2 forms. Hunter filed a

brief in opposition to Lee’s summary judgment motion.                                       Hunter maintained Lee did not

conclusively establish she was an employee of a governmental unit because the record did not

establish UTSWMC had the legal right to control the details of Lee’s work. Lee amended her

     2
       Hunter also sued two other doctors and two nurses who treated her son, as well as Dallas County and the Dallas County Hospital District
d/b/a Parkland. In her motions for summary judgment, Lee indicated she was the sole remaining defendant.



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motion for summary judgment to address this issue. Lee attached a new affidavit from herself,

as well as the other evidence presented with her original motion. Hunter did not file any further

response. After a hearing, the trial court denied Lee’s amended motion for summary judgment.

This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5)

(West Supp. 2016) (permitting interlocutory appeal from order denying summary judgment

based on assertion of immunity by individual who is employee of the state or political

subdivision).

       Lee contends the trial court erred in denying her summary judgment motion because she

conclusively established she was entitled to dismissal of the suit under section 101.106(f). We

review a trial court’s decision to deny a motion for summary judgment de novo. Henning v.

OneWest Bank FSB, 405 S.W.3d 950, 956 (Tex. App.—Dallas 2013, no pet.). By moving for

summary judgment under section 101.106(f), Lee was asserting a claim of governmental

immunity. See Powell v. Knipp, 479 S.W.3d 394, 398 (Tex. App.—Dallas 2015, pet. denied)

(citing Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011)). If immunity applies, it

deprives the trial court of subject matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 224 (Tex. 2004).         A defendant moving for summary judgment on the

affirmative defense of governmental immunity under section 101.106(f) must conclusively

establish every element of that defense. Powell, 479 S.W.3d at 398. If the movant does so, the

burden shifts to the nonmovant to raise a disputed fact issue or an exception to the affirmative

defense. Id.

       To obtain summary judgment pursuant to section 101.106(f), Lee needed to conclusively

prove: (1) she was an employee of a governmental unit; (2) the claims, if brought against the

governmental employer, would fall within the ambit of the tort claims act; (3) the claims are

based on conduct that was in the general scope of her employment; and (4) she moved to

                                               –3–
substitute the governmental employer and to be dismissed from suit. See id.; TEX. CIV. PRAC. &

REM. CODE ANN. § 101.106(f). As a matter of law, UTSWMC is a governmental unit under the

tort claims act.   Powell, 479 S.W.3d at 399; see TEX. CIV. PRAC. & REM. CODE ANN. §

101.001(3) (West Supp. 2016).

       We turn to whether Lee established she was an employee of UTSWMC. Under the tort

claims act, an “employee” is a person who is in the paid service of a governmental unit by

competent authority, but does not include an independent contractor, an agent or employee of an

independent contractor, or a person who performs tasks the details of which the governmental

unit does not have the legal right to control. TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2).

In Lee’s affidavit attached to her amended motion for summary judgment, she stated that in

February of 2012, she was a full-time employee of UTSWMC in the Neurology Department.

Lee also stated that she was a full-time physician and an assistant professor and was not

employed by Parkland or any other entity. Lee further stated that UTSWMC controlled and

directed the details of her employment, including the schedule she worked, the facility wherein

she worked, the type of patients she saw, the type of medical services she was authorized to

render, and the billing for her services. The affidavit of William Berendt, the Vice President and

Chief of the Office of Human Resources for UTSWMC, confirmed that Lee was employed by

UTSWMC as a full-time physician and assistant professor from July 1, 2007, to July 9, 2012.

He stated Lee was in the paid service of UTSWMC when she provided medical services to

patients like James Hunter on behalf of UTSWMC. Lee provided her W-2 Wage and Tax

statements for the years 2011 and 2012, which indicate that her employer was UTSWMC. Lee

also provided her Memorandum of Appointment from UTSWMC for fiscal year 2011-2012

reappointing her as an assistant professor in neurology. We conclude Lee established she was

UTSWMC’s employee at the relevant time. See Murk v. Scheele, 120 S.W.3d 865, 867 (Tex.

                                               –4–
2003) (physician whose practice is controlled by governmental unit is not precluded from being

an employee simply because she must exercise some independent medical judgment).

       As for the remaining elements of proof, Lee conclusively established those elements as

well. Hunter’s negligence claims, if brought against UTSWMC, would fall within the ambit of

the tort claims act. Tort claims against the government are, or could be, brought under the tort

claims act regardless of whether the act waives immunity for those claims. Tex. Dep’t of Aging

& Disability Servs. v. Cannon, 453 S.W.3d 411, 415 (Tex. 2015); Franka, 332 S.W.3d at 379–

80. And Lee presented evidence that Hunter’s claims are based on conduct that was in the

general scope of Lee’s employment. In her affidavit, Lee stated that her duties as a paid faculty

physician included providing treatment to patents such as James Hunter. Lee further stated that,

during the time she treated James Hunter, she was engaged in activities in the general course and

scope of her employment with UTSWMC. Finally, Lee moved to substitute UTSWMC and be

dismissed from the suit.

       Lee conclusively established her right to dismissal under section 101.106(f). The burden

then shifted to Hunter to raise a fact issue or an exception to Lee’s affirmative defense of

governmental immunity. Hunter did not do so. Accordingly, the trial court erred in denying

Lee’s motion for summary judgment. We sustain Lee’s sole issue.

       We reverse the trial court’s order denying Lee’s motion for summary judgment and

render judgment dismissing Hunter’s claims against Lee.




                                                    /Ada Brown/
                                                    ADA BROWN
                                                    JUSTICE


160325F.P05
                                              –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JESSICA D. LEE, M.D., Appellant                    On Appeal from the 101st Judicial District
                                                   Court, Dallas County, Texas
No. 05-16-00325-CV        V.                       Trial Court Cause No. DC-14-02393.
                                                   Opinion delivered by Justice Brown, Justices
LOIS HUNTER, INDIVIDUALLY AND                      Fillmore and O’Neill participating.
ON BEHALF OF THE ESTATE OF
JAMES HUNTER, DECEASED, Appellee

      In accordance with this Court’s opinion of this date, we REVERSE the trial court’s
March 7, 2016 order denying Jessica D. Lee’s motion for summary judgment and RENDER
judgment that:

       The claims of Lois Hunter, Individually and on Behalf of the Estate of James
       Hunter, Deceased, against Jessica D. Lee, M.D., are dismissed.

       It is ORDERED that appellant Jessica D. Lee, M.D. recover her costs of this appeal from
appellee Lois Hunter, Individually and on Behalf of the Estate of James Hunter, Deceased.


Judgment entered this 27th day of October, 2016.




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