Full Opinion (html_with_citations)

                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-22-00696-CV

   THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON and
                       Morgan M. Pomeranz, M.D.,
                              Appellants

                                                  v.

 Soine FISHER, Individually on Behalf of All Wrongful Death Beneficiaries of Buster Fisher,
                  Deceased, and on Behalf of Buster Fisher, Deceased,
                                         Appellee

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2021-CI-23131
                            Honorable Antonia Arteaga, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Luz Elena D. Chapa, Justice
                  Liza A. Rodriguez, Justice
                  Lori I. Valenzuela, Justice

Delivered and Filed: December 13, 2023

REVERSED AND RENDERED

           This is an interlocutory appeal challenging the trial court’s order denying a dismissal

motion based on section 101.106(e) of the Texas Tort Claims Act (TTCA). Appellants The

University of Texas Health Science Center at Houston (UTHSCH) and Dr. Morgan M. Pomeranz

contend the trial court erred by finding Dr. Pomeranz was a borrowed servant instead of an

employee entitled to dismissal. Because we conclude Dr. Pomeranz was an employee of UTHSCH
                                                                                                   04-22-00696-CV


under section 101.106(e) of the TTCA, we reverse the trial court’s order and render judgment

dismissing the suit against Dr. Pomeranz for lack of jurisdiction.

                                                 BACKGROUND

         Appellee Soine Fisher 1 sued UTHSCH and Dr. Pomeranz as well as several other

defendants for health care liability claims after her husband, Buster Fisher, died from

complications stemming from gastric bypass and hernia repair surgery. The surgery had been

performed at Bariatric Medical Institute of Texas, PLLC (BMI) by a team of doctors, including

medical fellow Dr. Pomeranz, who was enrolled in a fellowship program at UTHSCH, a

governmental unit. As part of the fellowship program, UTHSCH assigned Dr. Pomeranz to work

at BMI, a private practice facility specializing in bariatric medicine.

         UTHSCH moved to dismiss the suit against Dr. Pomeranz pursuant to section 101.106(e)

of the TTCA. It argued Dr. Pomeranz was a paid employee working in the course and scope of

his employment with UTHSCH, and because he was an employee of UTHSCH, the suit should be

immediately dismissed against him. Soine responded by arguing Dr. Pomeranz was subject to

BMI’s right of control as a borrowed servant and ceased being an employee of UTHSCH when he

was caring for patients, including Buster, at BMI.

         The trial court agreed with Soine, found Dr. Pomeranz was a borrowed servant, and denied

UTHSCH’s motion. UTHSCH and Dr. Pomeranz appealed, arguing the trial court erred because

Dr. Pomeranz’s status as a UTHSCH fellow made him an employee of UTHSCH under section

101.004 of the TTCA, and as a result, he was entitled to dismissal as an employee. They further

argue Dr. Pomeranz was not a borrowed servant because UTHSCH judicially admitted Dr.




1
 Soine bought this suit individually on behalf of all wrongful death beneficiaries of Buster Fisher, deceased, and on
behalf of Buster Fisher, deceased.


                                                        -2-
                                                                                  04-22-00696-CV


Pomeranz was an employee who was acting in the course and scope of his employment and

UTHSCH retained control over the academic aspects of his fellowship.

                                    STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to dismiss pursuant to section 101.106(e) of

the TTCA de novo. Crockett Cnty. v. Damian,
622 S.W.3d 58
, 60 (Tex. App.—El Paso 2020, no

pet.); see City of Webster v. Myers,
360 S.W.3d 51, 56
 (Tex. App.—Houston [1st Dist.] 2011, pet.

denied). This is because the dismissal motion raises an immunity issue, which invokes a question

of subject matter jurisdiction—a question of law subject to a de novo review. Myers,
360 S.W.3d at 56
 (citing Franka v. Velasquez,
332 S.W.3d 367
, 371 n.9 (Tex. 2011) and Tex. Dep’t of Parks

& Wildlife v. Miranda,
133 S.W.3d 217, 224
 (Tex. 2004)).

                                       APPLICABLE LAW

       “The Tort Claims Act, contained in chapter 101 of the Texas Civil Practice and Remedies

Code, provides a limited waiver of immunity for tort suits against the government.” Tex. Dep’t of

Aging & Disability Servs. v. Cannon,
453 S.W.3d 411, 414
 (Tex. 2015) (citing Mission Consol.

Indep. Sch. Dist. v. Garcia,
253 S.W.3d 653, 655
 (Tex. 2008)). Section 101.106, known as the

election-of-remedies provision, “force[s] a plaintiff to decide at the outset whether an employee

acted independently and is thus solely liable, or acted within the general scope of his or her

employment such that the governmental unit is vicariously liable.” Laverie v. Wetherbe,
517 S.W.3d 748, 752
 (Tex. 2017) (quoting Garcia,
253 S.W.3d at 657
) (internal quotation marks

omitted). It also serves to ease “the burden placed on governmental units and their employees in

defending duplicative claims” by favoring the dismissal of employees when a suit is brought

against a governmental unit and its employee. Cannon,
453 S.W.3d at 415
; see Tex. Adjutant

Gen.’s Office v. Ngakoue,
408 S.W.3d 350, 355
 (Tex. 2013) (explaining section 101.106’s election

scheme favors expedient dismissal of governmental employees when suit should have been


                                              -3-
                                                                                    04-22-00696-CV


brought against government). When we must determine the meaning of section 101.106’s various

provisions, the Texas Supreme Court instructs us to “favor a construction that most clearly leads

to the early dismissal of a suit against an employee when the suit arises from an employee’s

conduct that was within the scope of employment and could be brought against the government

under the TTCA.”
Id. at 355
.

       Specifically, subsection (e)—the section at issue—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 § 101.106(e). The plain language of the subsection forces an

election “when a plaintiff sues both the governmental unit and its employee and the governmental

unit moves to dismiss its employee.” Tex. Dep’t of Pub. Safety v. Deakyne,
371 S.W.3d 303, 310

(Tex. App.—San Antonio 2012, pet. denied) (construing the meaning of subsection 101.106(e)).

“[T]he employee becomes the non-elected defendant and is dismissed,” and “the governmental

unit remains in the suit as the elected defendant.” Id.; see also Univ. of Tex. Health Sci. Ctr. at

Hous. v. Rios,
542 S.W.3d 530, 532
 (Tex. 2017) (“If the plaintiff nevertheless sues both employer

and employee, section 101.106(e) requires that the employee ‘immediately be dismissed’ on the

employer’s motion.”); Ngakoue,
408 S.W.3d at 358
 (explaining once employee is dismissed, suit

proceeds solely against the government so long as immunity is otherwise waived).

       The crux of this case centers on whether Dr. Pomeranz was an employee for purposes of

the TTCA. The TTCA defines “employee” as:

       a person, including an officer or agent, 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.




                                               -4-
                                                                                     04-22-00696-CV


TEX. CIV. PRAC. & REM. CODE § 101.001(2). In Marino v. Lenoir, the Texas Supreme Court

explained for this statutory definition of employee to apply, the defendant must be “in the paid

service” of the claimed governmental unit but not “a person who performs tasks the details of

which the government does not have the legal right to control.”
526 S.W.3d 403, 406
 (Tex. 2017).

In that case, the Texas Supreme Court held a UTHSCH medical resident was not entitled to

dismissal because she failed to establish the governmental unit had an actual right to control the

details of her work.
Id.
 at 406–10; see Prater v. Owens,
667 S.W.3d 363
, 372–73 (Tex. App.—

Houston [1st Dist.] 2022, no pet.) (summarizing Marino’s holding); Stallworth v. Robinson, No.

04-21-00205-CV,
2021 WL 5496345
, at *3 (Tex. App.—San Antonio Nov. 24, 2021, no pet.)

(mem. op.) (highlighting under Marino, to establish one’s status as employee, party must show he

was “in the paid service of the governmental unit and the governmental unit ha[d] an actual right

to control the details” of his work (quoting Marino, 526 S.W.3d at 406–09) (internal quotations

omitted)). After Marino, the Legislature enacted section 101.004, which provides:

       For purposes of [the TTCA], a resident or fellow in a graduate medical training
       program for physicians that is sponsored by a governmental unit . . . is considered
       to be an employee of a governmental unit regardless of the method or source of
       payment of the resident or fellow.

TEX. CIV. PRAC. & REM. CODE §101.004; Prater, 667 S.W.3d at 372–73 (explaining section

101.004 was enacted to clarify medical residents and fellows of government-sponsored training

programs receive same liability protection as other state employees of sponsoring unit); (citing

Senate Comm. on Higher Educ., Bill Analysis, Tex. S.B. 1755, 86th Leg., R.S. (2019)).

                                          APPLICATION

       As indicated above, UTHSCH and Dr. Pomeranz contend Dr. Pomeranz was an employee

entitled to dismissal because: 1) under the plain language of section 101.004, Dr. Pomeranz’s status

as a UTHSCH fellow makes him an employee; 2) UTHSCH judicially admitted Dr. Pomeranz was



                                                -5-
                                                                                    04-22-00696-CV


its employee, and it is the proper defendant; and 3) UTHSCH retained the right of control over Dr.

Pomeranz’s fellowship.

       Soine, however, contends Dr. Pomeranz does not have employee status merely because he

was a medical fellow. According to Soine, the statutory definition of employee set out in section

101.001(2) requires UTHSCH to show it has the right to control the details of Dr. Pomeranz’s

work, and section 101.004, which concerns medical residents and fellows, does not obviate this

requirement. Soine further contends UTHSCH did not have the right to control the details of Dr.

Pomeranz’s work, and Dr. Pomeranz was acting as a borrowed servant of BMI.

       Here, it is undisputed Dr. Pomeranz was a medical fellow of UTHSCH. Due to his status

as a medical fellow, the parties focus a significant portion of their arguments on reconciling the

language in section 101.001(2) with section 101.004, inviting us to determine whether UTHSCH’s

right of control over Dr. Pomeranz must be established to make him an employee under the TTCA.

We decline the invitation to make this determination because Dr. Pomeranz’s status as an

employee is determined by the pleadings, particularly UTHSCH’s dismissal motion. See Rios,

542 S.W.3d at 534–35 (holding status of doctors as employees was determined by plaintiff’s

petition and defendants’ pleadings, specifically their motion to dismiss under section 101.106(e)).

       As recently recognized by our sister court, the Texas Supreme Court held in University of

Texas Health Science Center at Houston v. Rios the parties’ pleaded judicial admissions are

dispositive in determining whether an individual defendant is an employee of a governmental unit

for dismissal purposes under subsection 101.106(e). See Rios, 542 S.W.3d at 532–35; see, e.g.,

Acclaim Physician Grp., Inc. v. Wright, No. 02-22-00389-CV,
2023 WL 6889978
, at *12 (Tex.

App.—Fort Worth Oct. 19, 2023, no pet. h.) (mem. op.) (citing Rios). In Rios, when the

governmental-unit hospital moved to dismiss the individual-physician defendants under

subsection 101.106(e) by claiming they were hospital employees, the Texas Supreme Court held


                                               -6-
                                                                                     04-22-00696-CV


the plaintiff’s decision to pursue a vicarious liability theory against the hospital amounted to a

judicial admission as to the individual-physician defendants’ status as hospital employees.
542 S.W.3d at 534
 (“Assuming Rios intended to plead a viable claim, his allegation was a judicial

admission that the Center’s actions through the Doctors were through employees, relieving the

defendants of having to prove that fact.”). The court further reasoned the status of the individual-

physician defendants as employees was “borne out by [the] defendants’ pleadings,” pointing to the

section 101.106(e) dismissal motion filed by the government-unit hospital.
Id. at 535
; see

Ngakoue,
408 S.W.3d at 358
 (explaining the filing of section 101.106(e) motion by government

unit “effectively confirm[ed]” doctors were employees and it was proper defendant).

       In this case, Soine alleged UTHSCH was vicariously liable for the torts of its employees,

naming Dr. Pomeranz as the only potential employee of UTHSCH. By deciding to pursue a

vicarious liability theory against UTHSCH and alleging UTHSCH was liable due to Dr.

Pomeranz’s actions, Soine judicially admitted Dr. Pomeranz was UTHSCH’s employee. See Rios,
542 S.W.3d at 534
. Soine, however, contends her pleadings do not amount to a judicial admission

because she maintained Dr. Pomeranz acted as a borrowed servant for BMI throughout her petition

and UTHSCH was only “conditionally sued.” This argument ignores the Texas Supreme Court’s

recognition an individual defendant’s status as an employee of a governmental entity may also be

borne out of the governmental-unit defendant’s pleadings, specifically its motion to dismiss under

section 101.106(e). See id; Ngakoue,
408 S.W.3d at 358
. And, we must remain mindful the filing

of a motion to dismiss triggers the right to dismissal under section 101.106(e). See Rios,
542 S.W.3d at 538
 (emphasizing the filing of a motion to dismiss triggers the right to dismissal based

on section 101.106(e)’s plain language). Here, UTHSCH’s motion to dismiss under subsection

101.106(e) alleged Dr. Pomeranz was a paid employee working in the course and scope of his

employment with UTHSCH, effectively confirming Dr. Pomeranz’s status as a UTHSCH


                                                -7-
                                                                                                   04-22-00696-CV


employee and its status as the proper defendant to sue. See
id. at 535
. Soine’s argument also

ignores the fact her conditional pleading is the type of pleading “section 101.106 was intended to

prevent.” Univ. of Tex. Health Sci. Ctr. at San Antonio v. Webber-Eells,
327 S.W.3d 233, 240

(Tex. App.—
San Antonio 2010
, no pet.) (rejecting plaintiff’s conditional pleading and plaintiff’s

attempt to avoid invoking section 101.106 of the TTCA (citing Garcia,
253 S.W.3d at 657
)).

Accordingly, we conclude based on the dispositive nature of the parties’ pleadings, Dr. Pomeranz

is an employee of UTHSCH, entitling him to dismissal under subsection 101.106(e) of the TTCA. 2

                                                   CONCLUSION

           Based on the foregoing, we reverse the trial court’s order denying UTHSCH’s section

101.106(e) motion to dismiss Dr. Pomeranz, and we render judgment dismissing Dr. Pomeranz

from this suit.

                                                           Luz Elena D. Chapa, Justice




2
    In light of our disposition, we need not reach UTHSCH and Dr. Pomeranz’s other issues. See TEX. R. APP. P. 47.1.


                                                         -8-