Brown v. Xie (Tex.App.- Houston [1st Dist.] May 29, 2008 )(Alcala)
(TTCA, governmental entities, defamation, suit against governmental entity vs. suit against employee,
election of defendant, election of remedies, motion to dismiss)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Elsa Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00137-CV Barbara Brown, Dan Fontaine, Dr. James Abbruzzese and U.T.M.D. Anderson Cancer
Center v. Ke-Ping Xie, M.D., Ph.D.
Appeal from 215th District Court of Harris County
Trial Court
Judge: Hon. Levi J. Benton  

O P I N I O N

    In this interlocutory appeal, appellants, Barbara Brown, Dan Fontaine, James Abbruzese (collectively,
“the employees”), and the University of Texas M.D. Anderson Cancer Center (“the hospital”), appeal the
trial court’s order, denying their motions to dismiss the claims filed by appellee, Ke-Ping Xie, against the
employees. The dismissal was requested under section 101.106 of the Texas Tort Claims Act (“the Act”).
Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–.109 (Vernon 2005 & Supp. 2007). In their sole issue on
appeal, the employees and the hospital assert that (1) Xie’s original petition asserted a claim for
defamation against the hospital and (2) Xie’s suit was a suit “under” the Act, which was an irrevocable
election by Xie that required the dismissal of the claims against the employees. We conclude that the trial
court erred by denying the motion to dismiss the claims against the employees. We reverse the trial court’s
order and dismiss the employees.

Procedural Background

    In his original petition, Xie sued the employees “in their individual capacities” for defamation and he
requested injunctive relief against both the employees and the hospital. Xie sought an injunction to prohibit
the employees from “publishing or causing to be published defamatory communications about [Xie] to
persons without business necessity, professional interest or duty . . . .” Xie also sought an injunction
against the hospital “so that the individual [employees] may not improperly cloak themselves in the security
blanket of sovereign immunity to avoid the legal consequences of their individual tortious acts.” Xie alleged
that injunctive relief was appropriate against the hospital because the hospital was immune from a suit for
defamation and, therefore, “[t]here is no legal avenue by which [the hospital] could ever be held financially
accountable for the defamation, disparagement and other wrongful conduct at issue in this petition.”

    The hospital and the employees answered Xie’s suit. The hospital filed an answer asserting a general
denial, affirmative defense, and a plea to the jurisdiction based on sovereign immunity from suit and from
liability. Within its answer, the hospital also moved for dismissal of the claims against the employees under
section 101.106(e) of the Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (Vernon 2005). The
employees’ joint answer contained a general denial, affirmative defenses, and a motion to dismiss the
claims against them pursuant to section 101.106(e) of the Act. See id.

    Xie then filed an amended original petition. Xie asserted claims for employment discrimination against
the hospital only. Xie also asserted claims for intentional infliction of emotional distress and defamation
against the individual employees. Xie dropped his claim for injunctive relief.

    After holding hearings on the propriety of dismissal under section 101.106, the parties submitted
additional briefs to the court. In their supplemental brief, the employees clarified for the court that they
were seeking relief under section 101.106(e), not sub-section (f). The trial court signed a written order that
states,

The Court considered the joint motion to dismiss of [the employees] and [Xie’s] response thereto. The
Court hereby denies the motion to dismiss. The Court hereby stays all proceedings based on the oral
representations of . . . [the employees’] intent to appeal this order pursuant to Chapter 51, Civil Practice &
Remedies Code.



The record before us does not include a ruling concerning the hospital’s motion to dismiss the claims of
the employees.

Section 101.106 of the Texas Tort Claims Act

     Section 101.106, entitled “Election of Remedies,” provides:

(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 2005). “The purpose of section 101.106 is to force a
plaintiff to choose whether he will seek to impose tort liability on a governmental unit or on government
employees, individually.” Williams v. Nealon, 199 S.W.3d 462, 465 (Tex. App.—Houston [1st Dist.] 2006,
pet. filed) (citing Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005,
pet. denied)).

Motion to Dismiss Claims Against Individual Employees

    The hospital and the employees contend that Xie’s original petition was a lawsuit that asserted claims
brought “under” the Act against both the hospital and the employees and that the trial court had a
mandatory duty to dismiss the suit against the employees. See Tex. Civ. Prac. & Rem. Code Ann. §
101.106(e) (“the employees shall immediately be dismissed”)(emphasis added). Xie responds that (A) the
only petition that should be considered is the amended petition, which is the live pleading; (B) section
101.106(e) does not apply because the request for an injunction is not a lawsuit against the hospital; and
(C) his suit is not filed “under” the Act because the Act does not waive governmental immunity for
defamation.A.Original Petition Determines Entitlement to Dismissal under Tort Claims Act



    The parties dispute whether we should look to the original petition or to the amended petition to
determine whether the employees are entitled to dismissal under the Act. Xie filed an original petition that
asserted a cause of action against the employees for defamation and sought injunctive relief against the
employees and the hospital. Based on the original petition, the employees and the hospital moved to
dismiss the employees under section 101.106(e). After the employees and the hospital filed their motions,
Xie filed his amended petition, which dropped the claims for injunctive relief, asserted a claim for
employment discrimination against the hospital, and asserted claims for intentional infliction of emotional
distress and defamation against the employees. We conclude that Xie’s original petition, not his amended
petition, is the proper one to scrutinize to determine whether dismissal under section 101.106(e) is
appropriate. Villasan v. O’Rourke, 166 S.W.3d 752, 762 (Tex. App.—Beaumont 2005, pet. denied)
(concluding that if dismissal of government employee is appropriate based on original petition, filing of
amended petition does not avoid mandatory language of section 101.106(e)).

B.      Request for Injunctive Relief is Lawsuit Under Tort Claims Act

    Having determined that Xie asserted a request for injunctive relief in his original brief, we turn to the
parties’ dispute as to whether a lawsuit requesting injunctive relief is a lawsuit against the hospital. “[A]n
injunction is an equitable remedy, not a cause of action.” Meroney v. City of Colleyville, 200 S.W.3d 707,
713 (Tex. App.—Fort Worth 2006, pet. granted, judgm’t vacated w.r.m.) (citing Brittingham v. Ayala, 995 S.
W.2d 199, 201 (Tex. App.—San Antonio 1999, pet. denied)). However, a party can obtain an injunction
only by showing a probable right to recovery “through a claim or cause of action.” Id.; see also Clarendon
Nat’l Ins. Co. v. Thompson, 199 S.W.3d 482, 494 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating
that party cannot obtain temporary injunction unless it proves, inter alia, “(1) a cause of action [and] (2) a
probable right to recover on that cause of action”). Thus, a suit requesting an injunction against a
governmental entity is properly characterized as a claim against the government. See Meroney, 200 S.W.
3d at 711.  
                              Compare Lowell v. City of Baytown, No. 01-04-00548-CV, 2007 WL 2264703, at *2
(Tex. App.—Houston [1st Dist.] Aug. 9, 2007, pet. filed). In Lowell, this Court statedthat a suit for a
declaration construing a statute and for an injunction prohibiting theCity from violating the statute in the
future did not implicate governmental immunitybecause it did not require the payment of money damages
by the city. Id. (citing Tex.Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)
and Bell v. City of Grand Prairie, 221 S.W.3d 317, 325 (Tex. App.—Dallas 2007, nopet.)). We distinguish
Lowell from the instant case because the construction andviolation of a statute are not at issue, and the
only cause of action asserted by Xie isa tort, not a request for a declaration. See id. As discussed more
fully below, all tortsuits are suits under the Texas Tort Claims Act. See Mission Consol. Indep. Sch. Dist.v.
Garcia, No. 05-0734, 51 Tex. Sup. Ct. J. 621, 2008 WL 821037, at*4 (Tex. Mar.28, 2008).


Close

    Here, Xie’s original petition named the hospital as a defendant. He sought injunctive relief against the
hospital. The sole cause of action asserted by Xie was for defamation against the employees. We
conclude that Xie’s lawsuit for injunctive relief against the hospital is properly characterized as a
defamation claim against the hospital. See Meroney, 200 S.W.3d at 713 (holding that suit naming
governmental entity as defendant and seeking injunctive relief against governmental entity, but only
asserting single defamation cause of action against government employee, “is nevertheless properly
characterized as a defamation claim [against the governmental entity]”).

C.      Lawsuit for Defamation is “Under” Tort Claims Act

    Having determined that the claim for injunctive relief against the hospital is properly characterized as a
lawsuit against the hospital for defamation, we next turn to the parties’ dispute whether the lawsuit for
defamation is a lawsuit “under” the Act for purposes of section 101.106. The hospital and employees
contend that any tort lawsuit filed against the government is “under” the Act because the only possible
relief for the government’s tortious acts lies in the Act’s limited waiver of immunity. Xie responds that his
lawsuit is not “under” the Act because defamation is not a tort for which the Act waives immunity. See Tex.
Civ. Prac. & Rem. Code Ann. § 101.057 (Vernon 2005) (stating that Act does not waive immunity for
intentional torts).

    The Supreme Court of Texas recently addressed this issue. See Mission Consol. Indep. Sch. Dist. v.
Garcia, No. 05-0734, 51 Tex. Sup. Ct. J. 621, 2008 WL 821037, at*4 (Tex. Mar. 28, 2008). In Garcia, the
court of appeals affirmed a trial court’s denial of the School District’s jurisdictional pleas under section
101.106. Id. The court of appeals determined that Garcia’s claims were not “under this chapter” because
the claims did not fit within the Act’s waiver of immunity. Id. In rejecting this argument, the Texas Supreme
Court concluded,

Because the Tort Claims Act 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 Tort Claims Act]” for purposes of section 101.106.

Id. (citing Newman v. Obersteller, 960 S.W.2d 621, 622–23 (Tex. 1997)). Because “all tort theories” are
“under this chapter” for purposes of section 101.106, we conclude that section 101.106 does apply to Xie’s
claims for intentional torts.

    Section 101.106(e) 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). Here, both the hospital and the
employees sought dismissal under section 101.106(e). Although it did not rule on the hospital’s motion, the
trial court denied the employees’ motion. We hold that the trial court erred by denying the employees’
motion to dismiss the claims against them. See id.; see also Garcia, 2008 WL 821037 at *5 (“Under
subsection (e), [the employee] would be entitled to dismissal of Garcia’s suit against him upon the ISD’s
filing of a motion.”). Accordingly, we conclude that the trial court erred by failing to dismiss the individual
employees.

    We sustain the employees’ sole issue.



Conclusion

    We reverse the order of the trial court and dismiss the employees.



                                                       Elsa Alcala

                                                       Justice



Panel consists of Chief Justice Radack and Justices Alcala and Bland.