

NO. 07-07-0049-CV
 
IN THE
COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

AUGUST
9, 2011
 

 
EVELYN CLARK, R.N., ROSEANNE RODRIGUEZ, MHS,
and ELIZABETH ORTIZ, MAS,  
 
                                                                           Appellants

v.
 
CYNTHIA SELL, ON BEHALF OF MITCHELL RAY SELL,  
                                                                                         
                                                                                         Appellee
_____________________________
 
FROM THE 72ND DISTRICT COURT OF LUBBOCK
COUNTY;
 
NO. 2006-536,095; HONORABLE RUBEN
GONZALES REYES, PRESIDING
 

 
Memorandum
Opinion
 

 
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
            Evelyn
Clark, Roseanne Rodriguez, and Elizabeth Ortiz (the nurses) appealed the trial
court’s order denying their motion to dismiss them as defendants in a lawsuit
filed by Cynthia Sell, on behalf of Mitchell Ray Sell, for injuries that
Mitchell received while under the care of the nurses’ employer, Sunrise Canyon
Hospital.   Dismissal was sought upon the
basis of §101.106(f) of the Civil Practice and Remedies Code which provides for
such dismissal if the movant is an employee of a governmental unit, the conduct
involved occurred within the general scope of that employee’s employment, and
the suit could have been brought against the governmental unit or entity.  Tex.
Civ. Prac. & Rem. Code Ann. §101.106(f) (Vernon 2011).  The parties challenged only whether the third
condition had been met.  We originally
affirmed the trial court’s order of dismissal finding that the suit could not
have been brought against the nurses’ employer due to sovereign immunity.  Clark
v. Sell, 228 S.W.3d 873, 875 (Tex. App.– Amarillo 2007).
            Our decision
was reversed by the Texas Supreme Court and remanded to us[1]
in light of that Court’s decision in Franka
v. Velasquez, 332 S.W.3d 367 (Tex. 2011). 
In Franka, the Court held that
for purposes of §101.106(f), suit “could have been brought” against a
governmental unit entitled to sovereign immunity regardless of whether
sovereign immunity had been waived.  Id. at 385.  In light of that decision, we reverse the
order of the trial court and render judgment dismissing the claims against
Clark, Rodriguez, and Ortiz.  Tex. R. App. P. 43.3. 
            
                                                                                    Brian Quinn 
                                                                                    Chief
Justice




[1]Clark v. Sell, 332 S.W.3d 366, 367 (Tex.
2011).


