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Scheele v. Murk2/7/2001
REVERSED AND REMANDED
The appellant, Brian Scheele, sustained head and back injuries after falling from a horse. Brian was admitted to the University Hospital where the appellees, Dr. Steven Murk and Dr. Gary Flangas, treated him. Brian and his wife, Cindi, later sued Dr. Murk, Dr. Flangas, and other defendants, for damages they contend resulted from the defendants' negligent treatment of Brian. The Scheeles subsequently non-suited their claims against the other defendants. Dr. Murk and Dr. Flangas moved for summary judgment on three grounds. The trial judge granted summary judgment in favor of the doctors without specifying the grounds for the order. In this appeal, the Scheeles appeal the trial court's summary judgment order.
When reviewing a summary judgment order, the court of appeals must determine whether the summary judgment evidence establishes as a matter of law that no genuine issue of fact exists as to one or more of the essential elements of the plaintiff's cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether a disputed material fact issue exists, the court of appeals will view evidence favorable to the non-movant as true. See Nixon, 690 S.W.2d at 548-49. The reviewing court must indulge every reasonable inference in favor of the non-movant and resolve any doubt in the non-movant's favor. Id. Where the trial judge does not specify the basis of the summary judgment order as in the instant case, the court of appeals must consider all grounds preserved for review, Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996), and uphold the order on any theory advanced that is meritorious; State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Immunity Defense
The Scheeles originally sued several defendants in addition to the doctors. The other defendants included the University of Texas Health Science Center (UTHSC) and the Bexar County Hospital District (BCHD).
UTHSC obtained summary judgment based on sovereign immunity under the Texas Tort Claims Act (the Act). In response, the doctors moved for summary judgment pursuant to section 101.106 of the Texas Practices and Remedies Code, arguing that the Scheeles' claims were barred by the earlier judgment because they were employees of UTHSC. When a defendant moves for summary judgment based on an affirmative defense, the defendant must prove conclusively all elements of the offense as a matter of law such that no genuine issue of material fact exists. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).
Section 101.106 provides that " judgment in an action or a settlement of a claim [under the Texas Tort Claims Act] bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim." Tex. Civ. Prac. & Rem. Code §101.106 (Vernon 1997). As a result, the judgment in favor of UTHSC would bar an action against Dr. Murk and Dr. Flangas if they were employees of UTHSC at the time they treated Brian.
The Act 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." Id. §101.001(l). T
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