author: PER CURIAM.

text:
    Mary MATHIS, Petitioner, v. Joseph F. LOCKWOOD, Respondent.
    No. 04-0516.
    Supreme Court of Texas.
    June 17, 2005.
    Mary Mathis, pro se.
    Rhonda F. Hunter, for Joseph F. Lockwood.
   PER CURIAM.

Mary Mathis, appearing pro se, appeals the trial court’s refusal to set aside a post-answer default judgment against her. The court of appeals affirmed, holding Mathis failed to overcome a presumption that she received notice of the trial setting. 132 S.W.3d 629, 632. Finding neither presumption nor evidence to support this con-elusion, we reverse and remand to the trial court for a new trial.

Mathis and her two children lived with respondent Joseph Lockwood for some period of time before suit. When the relationship soured, Lockwood filed suit seeking a declaration that he and Mathis were not common-law spouses, and the return of property he claimed Mathis had stolen. Mathis apparently filed an answer, though it is not in the record.

The case was set for trial .December 13, 2002, before a visiting judge. Mathis did not appear. After brief testimony from Lockwood, a post-answer default judgment was rendered in his favor.

On January 9, 2003, Mathis filed a “Motion for a Request Rehearing” asserting she never received notice of the December 13th trial. She testified to the same effect at a hearing on the motion before the court’s presiding judge on February 4th. Conversely, Lockwood’s counsel testified that notice was sent to Mathis’s last known address and her former attorney. None of the witnesses were sworn, and while the reporter’s record indicates Lockwood’s counsel tendered a document to the judge at this hearing, none appears in the reporter’s record. The trial court refused to set aside the default judgment.

For many years, a post-answer default could be set aside only if a defendant proved three elements: (1) nonappearance was not intentional or the result of conscious indifference; (2) a meritorious defense; and (3) a new trial would cause neither delay nor undue prejudice. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987) (citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939)).

When the first element is established by proof that the defaulted party was not given notice of a trial setting, we have dispensed with the second element for constitutional reasons. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)).

For the same reasons, the court of appeals also dispensed with the third element. 132 S.W.3d at 631; accord In the Matter of the Marriage of Lisa Ann Runberg, 159 S.W.3d 194, 200 (Tex.App.Amarillo 2005, no pet.); In the Matter of the Marriage of Brenda May Parker, 20 S.W.3d 812, 817-18 (Tex.App.Texarkana 2000, no pet.). We need not reach that issue here, however, because in any event Mathis’s sworn motion asserted that a new trial would not injure Lockwood, and nothing in the record establishes the contrary. Cliff, 724 S.W.2d at 779-80 (requiring new trial as “there is nothing in the record to show that a new trial will work an injury to [the plaintiff]”); see also Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994) (holding Craddock elements may be established by affidavit, even if not tendered as evidence at new trial hearing).

Thus, the only question before us is whether Mathis established the first element. Her sworn motion for new trial asserted that she failed to appear at the December 13th trial because she never received notice of the setting. At the post-judgment hearing, Lockwood’s counsel testified that notice was sent to Mathis, and Mathis denied receiving it. While statements by neither were under oath, the oath requirement was waived when neither raised any objection in circumstances that clearly indicated each was tendering evidence on the record based on personal knowledge on the sole contested issue. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997) (holding attorney’s unsworn statements tendered as evidence were sufficient absent objection); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.2005) (holding pro se litigants are governed by the same rules as attorneys).

The court of appeals held that the trial court as fact finder could have concluded that Mathis failed to overcome the presumption “that a trial court hears a case only after proper notice to the parties” and “that she was notified of the trial setting.” 133 S.W.3d at 631-32 (citing Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex.App.Dallas 1993, no writ)). We disagree that there were any such presumptions on the facts presented here.

It is true that notice properly sent pursuant to Rule 21a raises a presumption that notice was received. Tex.R. Civ. P. 21a; Cliff, 724 S.W.2d at 780. But we cannot presume that notice was properly sent; when that is challenged, it must be proved according to the rule.

Unlike service of citation, Rule 21a allows service of notices by anyone competent to testify. Tex. R Civ. P. 21a. When a party or attorney of record serves the notice (as occurred here), “[t]he party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument.” Id. (emphasis added). Like any other contemporaneous business record, this certificate bears some assurance of trustworthiness as it was prepared as a matter of office routine before any dispute about notice arose.

“A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any person showing service of a notice shall be prima facie evidence of the fact of service.” Id. Here, the record contains no certificate of service, no return receipt from certified or registered mail, and no affidavit certifying service. Instead, the only evidence of service in the record was the oral assurance of counsel. As the rule’s requirements are neither vague nor onerous, we decline to expand them this far. As none of the prerequisites for prima facie proof of service were met, the court of appeals was incorrect in indulging a presumption that Mathis received the notice Lockwood’s counsel sent.

Without this presumption, there was no evidence that Mathis received notice of the trial setting. Testimony by Lockwood’s counsel that notice was sent did not contradict Mathis’s testimony that notice was never received. See id. (“Nothing herein shall preclude any party from offering proof that the notice or instrument was not received.... ”). Even if the trial judge disbelieved Mathis’s testimony, that would not provide affirmative evidence that service occurred. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (‘When the testimony of a witness is not believed, the trier of fact may simply disregard it. Normally the discredited testimony is not considered a sufficient basis for drawing a contrary conclusion.”).

No other alternatives established service. Notice to Mathis’s former attorney was no longer notice to Mathis after her attorney withdrew. Tex.R. Civ. P. 10; see, e.g., Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex.1979) (holding pro se party was charged with notice of all pleadings served on him, or on his attorney prior to withdrawal). Notice to Mathis’s last known address was sent to Lockwood’s home; Lockwood could not serve Mathis by serving himself. And counsel’s statement at the trial that “I had my office call her and speak to her about today’s hearing” shows no personal knowledge that notice was received, certainly none 45 days before trial. Tex.R. Civ. P. 245.

Citing Rule 21a’s provision that notice may be sent to a party’s last known address, the court of appeals held that litigants have a duty “to keep the court and parties apprised of their correct and current address.” 132 S.W.3d at 631. Not all courts of appeals appear to agree. See Ewton v. Gayken, 130 S.W.3d 382, 384-85 (Tex.App.Beaumont 2004, pet. denied) (holding court clerk erred by sending dismissal notice to attorney’s address of record rather than forwarding address printed on returned envelope). But even assuming there is such a duty, unless noncompliance was intentional rather than a mistake, due process requires some lesser sanction than trial without notice or an opportunity to be heard. Peralta, 485 U.S. at 85-86, 108 S.Ct. 896; Cliff, 724 S.W.2d at 779.

Because the Craddock test was satisfied in this .case, the trial court abused its discretion in refusing to set aside the default judgment against Mathis. Accordingly, without hearing oral argument, we grant Mathis’s petition for review, reverse the court of appeals’ judgment, and remand the case to the trial court for further proceedings consistent with this opinion. Tex.R.App. P. 59.1.

      . At Mathis’s request, the court of appeals ordered both the district clerk and the court reporter to supplement the record with any exhibits. Tex.R.App. P. 34.5(c), 34.6(d). Neither found any.

      . While Mathis’s motion for new trial was filed after the trial court’s initial hearing on her “rehearing” motion, it was brought to the trial court’s attention at a second hearing held about a month later.


source: Caselaw Access Project

license: Public Domain

text:
    Dan THOMAS, Appellant, v. Walter FITZGERALD, Appellee.
    No. 10-03-00195-CV.
    Court of Appeals of Texas, Waco.
    April 6, 2005.

      Dan Thomas, Rosharon, pro se.
    Walter Fitzgerald, Gatesville, pro se.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

PER CURIAM.

Dan Thomas appeals the trial court’s dismissal of his petition for deposition to perpetuate testimony. Because the underlying order is interlocutory and because this appeal is not authorized by statute, we will dismiss the appeal.

Rule of Civil Procedure 202.1 permits the taking of depositions to perpetuate a person’s testimony “for use in an anticipated suit” or “to investigate a potential claim or suit.” A person obtains such a deposition by filing a petition with a proper court. See TexR. Civ. P. 202.1, 202.2. The court’s ruling on the petition constitutes a final, appealable order if the petition seeks discovery from a third party against whom a suit is not contemplated. Ross Stores, Inc. v. Redken Laboratories, Inc., 810 S.W.2d 741, 742 (Tex.1991) (per curiam) (citing Dallas Jt. Stock Land Bank v. Rawlins, 129 S.W.2d 485 (Tex.Civ. App.-Dallas 1939, orig. proceeding)); Valley Baptist Med. Ctr. v. Gonzalez, 18 S.W.3d 673, 676-77 (Tex.App.-Corpus Christi 1999), pet. granted, judgm’t vacated w.r.m., 33 S.W.3d 821 (Tex.2000) (per curiam); Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 902 (TexApp.-Houston [14th Dist.] 1999, no pet.).

Conversely, the ruling is interlocutory if discovery is sought from a person “against whom there is a suit pending or against whom a suit is specifically contemplated.” Jacintoport Corp., 987 S.W.2d at 902; accord Valley Baptist Med. Ctr., 18 S.W.3d at 676-77. In that instance, the order cannot be appealed until a final judgment is rendered in the pending or contemplated suit. Jacintoport Corp., 987 S.W.2d at 902 (citing Dallas Jt. Stock Land Bank, 129 S.W.2d at 487); accord Valley Baptist Med. Ctr., 18 S.W.3d at 677.

Here, Thomas states in his petition that he “anticipates a lawsuit in which he is the plaintiff against correctional officer—Walter Fitzgerald.” He seeks Fitzgerald’s deposition to determine “the merit of the anticipated lawsuit.”

Thomas’s deposition petition plainly seeks discovery from Fitzgerald in contemplation of a suit against Fitzgerald. Thus, the trial court’s order dismissing the petition is not a final, appealable judgment.

The Clerk of this Court notified Thomas by letter that his appeal appears subject to dismissal for want of jurisdiction because it is brought from an interlocutory order. See Tex.R.App. P. 42.3(a). Thomas requested and received an extension of time to respond to this notice. However, he has failed to file a response.

This Court has jurisdiction over an interlocutory appeal only when expressly provided by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998) (per curiam); Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 878 (Tex.App.-Waco 2001, no pet.). Because no statute authorizes an interlocutory appeal from an order denying a deposition to perpetuate the testimony of a person against whom a suit is pending or contemplated, we do not have jurisdiction over this appeal.

Accordingly, we dismiss the appeal.


author: TOM GRAY, Chief Justice,

text:
    Dwain FAGAN, Sr. and Rose Lee Fagan, Appellants, v. Calvin L. CRITTENDEN and Addie L. Crittenden, Appellees.
    No. 10-04-00042-CV.
    Court of Appeals of Texas, Waco.
    April 13, 2005.
    Eric C. Farrar, Rex Davis, Sheehy Lovelace & Mayfield, PC, Waco, for appellants.
    Steve Robertson, Phil Robertson, Robertson Robertson & Silas LLP, Clifton, for appellees.
   TOM GRAY, Chief Justice,

dissenting in opinion on motion for rehearing.

We should request a response and adr dress the issues raised in the Fagans’s motion for, rehearing. Tex.R.App. P. 49.2

Most motions for rehearing do nothing more than rehash the same arguments made in the original- brief on appeal. This motion for rehearing is different. This motion for rehearing does three things that cause me to know that we need to address the issues raised therein. First, it points out the fact that we did not address all of the Fagans’s arguments on the single issue addressed in the opinion. Second, it points out that, unlike most appeals, a simple affirmance of the trial court’s judgment on one theory does not eliminate the need, in this particular appeal, to address each of the other theories raised on appeal that may support the judgment. Third, and finally, the motion for rehearing calls attention to the fact that this appeal should, but does not, resolve the entire dispute between the parties.

The Dispute, the Judgment, and the Findings of Fact

This is a dispute over access to property. The original opinion adequately explains the dispute but unfortunately does not fully resolve it. The trial court’s judgment contains the following statement: “It is Declared that there exists a right of way and easement as described on Exhibit ‘A’, attached to and incorporated in this judgment by reference, for all purposes of residential and agricultural ingress and egress to Plaintiffs’ real property, the dominant estate.” The attached exhibit “A” is only a metes-and-bounds description of the area of the “right of way and easement” and contains no description of the scope of the rights of the dominant estate owner for the uses of the area defined by the survey.

The judgment also provides the “easement is appurtenant to Plaintiffs’ real property described above, and crosses the servient estate.... That easement further includes the right to maintain telephone lines therein, to trim branches from trees on the property of Defendants abutting the easement, and the right to mow and maintain the right-of-way to keep the easement clear, safe, and useable.” The judgment also includes a permanent injunction which prohibits the Fagans from “blocking, obstructing or closing in any manner the easement described.... ”

While the content of the judgment can easily be argued as solely referring to an easement, the trial court’s findings make this argument a bit problematic. The trial court’s first finding of fact states: “The roadway has been thrown open to public use since the memory of man runneth not to the contrary. Its long use by the public with full knowledge of Defendants’ predecessors in title amounts to a dedication of the roadway for public use.” The third finding blends concepts related to an easement created by implication with an easement created by necessity, then states: “Plaintiffs own an easement in the roadway by necessity.” The trial court’s seventh finding states: “Defendants are es-topped to deny Plaintiffs’ rights and use of the roadway.” And the trial court’s ninth finding states: “Plaintiffs hold an easement for access to Plaintiffs’ real property over the roadway by prescription.”

The Appeal

The Fagans conceded they had then-work cut out for them on appeal, acknowledging they would need to defeat every ground on which the judgment could be based that had support in the findings of fact. See Tex.R.App. P. 299. The Fagans argued the judgment could not be supported on the theories of 1) a public roadway, 2) easement by estoppel, 3) easement by necessity, 4) easement by prescription, or 5) easement by implication. They also attacked the award of attorney’s fees. The Crittendens did not argue that any theory other than those attacked by the Fagans supported the judgment.

In our original opinion, we determined only the issue of whether the judgment could be supported on the theory of implied easement. Finding the necessary support in the record for the implied finding of an implied easement, we determined that we did not need to decide the issues regarding the other theories. I now believe this was error. The relative rights and responsibilities of each theory are different. Most notable, the rights and responsibility regarding the dedication of a public roadway are profoundly different than an easement by implication.

The Problems: Different Theories Equal Different Rights and The Dispute is Not Resolved

Litigation is supposed to put an end to the disputes between the parties. Without resolution of the question — “Upon which theory is the judgment based?” — we are nothing more than a relay station in this dispute between these parties. The inevitable questions of what rights does the servient owner retain to exercise over the property is bound to be bitter and protracted. In any event, I do not think we have resolved our most fundamental of tasks, to decide the issues presented to us by the parties that are necessary to the final disposition of the appeal. Tex.R.App. P. 47.1. A determination that the judgment did not establish the disputed property as a public road will have profound consequences upon the Fagans’s rights to control activities on the road, in addition to the ability to control the activities of the Crittendens on the road. By the way, who must pay taxes on this public road? If the road washes out due to heavy rains, who must repair it? Who can travel it? If only an easement exists, can the public go as far up the easement as needed to get to the Hill Cemetery, travel for which it has been intermittently used in the past?

Accordingly, I would address each theory upon which the judgment could be based, primarily to define for the parties what rights and responsibilities each party has in and to the property described in Exhibit A.

The Argument We Did Not Address

I do find it interesting to note that due to an oddity in this case, it appears that the only theory that will actually support an easement over the entire area described on Exhibit A to the judgment is an easement by necessity. The oddity is that the area described by the metes-and-bounds description runs the full length of the Fa-gans’s western property line. The road does not. Toward the southern end of Exhibit A, the road veers off the property, entirely off the Fagans’s tract, and clips across the corner of property owned by Collins before the road actually reaches the Crittendens’s property.

The area at the southern end of the tract described by Exhibit A, that portion which lies beyond the hook in the road and the Crittendens’s tract, is not adversely possessed and was apparently never used as part of the roadway. Thus, this hook in the road would keep this small area from being part of an easement by prescription (never adversely possessed) or an easement by implication, estoppel, or public road (never used as a part of the road). Thus the only theory that could support an easement that runs the full length of the property, without regard to the hook in the existing road, is an easement by necessity because this theory needs no road at all for its validity. See Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984). The other theories, however, may very well support so much of the area described on Exhibit A that was actually used as a road.

It is this oddity, and its impact on the easement by implication finding, that was argued by the Fagans as defeating the finding, that we completely failed to address in the original opinion on the merits. The Fagans strenuously argued that for an easement by implication to exist, the road cannot cross another tract, in this- case, Collins’s property. We failed to address this argument and thus failed to comply with the Rules of Appellate Procedure. See Tex.R.App. P. 47.1.

In Closing

Accordingly, this is one of those rare instances in which the motion for rehearing has called to my attention the need to address all of the theories argued in support of the judgment, because, in this instance, different theories have different consequences. We should decide which-theories will support the judgment, if any, then reform the judgment to only those theories, if any, that support the judgment, or reform the judgment and base it only on those theories which we have decided find support in the record. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1963); Johnson v. Dale, 835 S.W.2d 216 (Tex.App.-Waco 1992, no pet.)(addressing easement by deed, by prescription, by implication, and by necessity, and reforming the judgment to base it only on those theories finding support in the record. I do note, however, that easement by estop-pel was not decided.). At the very least we should decide the Fagans’s issues regarding dedication of a public road and determine whether the rights under any of the various easement theories provide differing rights. It may be that the rights of an easement by implication, prescription, and estoppel are the same. We know, however, that the area for these easements cannot support the entirety of area described in the judgment.

CONCLUSION

For these reasons I can no longer join in the judgment rendered by this Court on February 23, 2005. I respectfully dissent to the judgment, and the Court’s failure to address these issues by its summary denial of the motion for rehearing.

      . I have not attempted to determine if it is appropriate to define a metes-and-bounds description to an easement created in any manner other than as easement by deed. The physical size of the easement described on Exhibit A or its uses as described in the judgment, has not been directly attacked in this appeal.


author: TOM GRAY, Chief Justice, BILL VANCE, Justice,

text:
    Alanda Suzanne FEWINS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00189-CR.
    Court of Appeals of Texas, Waco.
    April 20, 2005.
    Andrew W. Lucas, Glen Rose, for appellant.
    B.J. Shepherd, Bosque County Dist. Atty., Meridian, for appellee.
   TOM GRAY, Chief Justice,

concurring in opinion to order striking brief.

This case again demonstrates the need to revisit the procedure we use in Anders cases. For an example of an Anders brief which substantially complies with the requirements of Sowels, counsel should look to the attachment to the concurring opinion in Perryman. Perryman v. State, 159 S.W.3d 778, 2005 Tex.App. LEXIS 2106 (Tex.App.-Waco Mar. 16, 2005, order) (Gray, C.J., concurring). The attachment is a redacted version of a brief previously found to be in compliance with this Court’s burdensome requirements in an Anders appeal.

Of course, this is only an example and any Anders brief must be tailored to the facts and circumstances of the individual case. It cannot simply be copied, edited, and filed. But it certainly can provide a rule and guide to the lawyer looking for direction from someone familiar with the procedure in this Court for Anders briefs. As the Court has imposed the burden of Sowels and its progeny, I feel that it is also the Court’s burden to provide some, guidance on how to comply with it.

BILL VANCE, Justice,

concurring.

Anders issues, like most issues we confront on appeal, do not lend themselves to a “one-size-fits-all” categorization. Accordingly, counsel should be cautious about rotely following a form-brief that has not been adopted by or approved by the court.


author: BILL VANCE, Justice, TOM GRAY, Chief Justice,

text:
    Matthew Scott BECKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00245-CR.
    Court of Appeals of Texas, Waco.
    April 20, 2005.
    Hugh O’Fiel, Beaumont, for appellant.
    Tom Maness, Jefferson County Dist. Atty., Beaumont, for appellee.
   BILL VANCE, Justice,

concurring.

Anders issues, like most issues we confront on appeal, do not lend themselves to a “one-size-fíts-all” categorization. Accordingly, counsel should be cautious about rotely following a form-brief that has not been adopted by or approved by the court.

TOM GRAY, Chief Justice,

concurring.

This case again demonstrates the need to revisit the procedure we use in Anders cases. For an example of an Anders brief which substantially complies with the requirements of Sowels, counsel should look to the attachment to the concurring opinion in Perryman. Perryman v. State, 159 S.W.3d 778, 2005 Tex.App. LEXIS 2106 (Tex.App.-Waco Mar. 16, 2005, order)(Gray, C.J., concurring). The attachment is a redacted version of a brief previously found to be in compliance with this Court’s burdensome requirements in an Anders appeal.

Of course, this is only an example and any Anders brief must be tailored to the facts and circumstances of the individual case. It cannot simply be copied, edited, and filed. But it certainly can provide a rule and guide to the lawyer looking for direction from someone familiar with the procedure in this Court for Anders briefs. As the Court has imposed the burden of Sowels and its progeny, I feel that it is also the Court’s burden to provide some guidance on how to comply with it.


author: HOLLIS HORTON, Justice.

text:
    Antonio J. VILLASAN, M.D., Appellant, v. William O’ROURKE, Individually; Laura O’Rourke, Individually; and Laura O’Rourke, as Next Friend of Brock O’Rourke, Appellees.
    No. 09-04-409 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 14, 2005.
    Decided May 26, 2005.

      Greg Abbott, Atty. Gen., Barry R. McBee, First Asst. Atty. Gen., Edward D. Burbach, Deputy Atty. Gen. for Litigation, Nelly R. Herrera, Chief Tort Litigation Division, R. Ted Cruz, Solicitor, Sean D. Jordan, Asst. Solicitor Gen., David G. Hal-pem, Asst. Atty. Gen., Austin, for appellant.
    Ronald L. Bair, Amanda S. Hilty, The Bair Law Firm, PC, Houston, for appel-lees.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

This is a case of first impression and requires that we interpret the amended provisions of section 101.106(e) of the Texas Civil Practice and Remedies Code enacted as a part of the Legislature’s tort reform efforts in 2003. See Tex. Civ. PRAC. <& Rem.Code Ann. § 101.106(e) (Vernon Supp.2005). Section 101.106(e) provides in suits where both the governmental unit and its employee are sued, the suit against the employee immediately be dismissed on motion of the governmental unit. The ultimate issue is whether the trial court erred in denying Dr. Antonio Villasan’s motions requesting his dismissal from a suit filed by William • O’Rourke and other family members against Dr. Villasan and the University of Texas Medical Branch, Galveston (“UTMB”). Subsidiary to that issue are questions of whether the trial judge had a mandatory duty to dismiss Dr. Villa-san pursuant to section 101.106(e) based on the government’s filing of a motion to do so, and whether the amendments to section 101.106 apply despite a federal court suit filed by the O’Rourkes prior to the effective date of the amended provisions. Answering the two subsidiary questions in the affirmative leads us to conclude the trial court erred in failing to grant Dr. Villasan’s motion to dismiss the claim against him, and accordingly, we reverse and dismiss.

Procedural History

The O’Rourkes sued UTMB and Dr. Vil-lasan, its employee, on September 22, 2003 in state court in Jefferson County, Texas. The O’Rourkes complain that Dr. Villasan negligently failed to diagnose William O’Rourke’s cancer during a period when he received medical treatment while incarcerated at F.C.C. Beaumont Camp, a federal prison operated by the Federal Bureau of Prisons.

On February 17, 2004, UTMB filed a motion to dismiss and sever based on Civil Practice and Remedies Code section 101.106(e) that 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) (Vernon Supp.2005). The O’Rourkes responded to UTMB’s motion by filing their First Amended Original Petition, omitting UTMB as a party, and leaving Dr. Villasan as the sole defendant.

Subsequently, on May 17, 2004, Dr. Vil-lasan filed a motion to dismiss, arguing that because he was an employee of UTMB and because UTMB filed a motion to dismiss, the trial court had a mandatory duty to dismiss him. On June 28, 2004, Dr. Villasan filed an amended request to dismiss and alternatively, a motion for summary judgment, re-asserting that section 101.106(e) mandated the trial court’s dismissal of the O’Rourkes’ claims. The O’Rourkes responded to Dr. Villasan’s amended motion, arguing that: (1) Dr. Vil-lasan’s motion was moot because they dismissed UTMB; (2) Dr. Villasan could not rely on the statute entitling the government to have suits against its employees dismissed; (3) section 101.106(e) of the Texas Civil Practice and Remedies Code (hereinafter “Code”) violated Article I, Section 13, referred to as the open courts provision of the Texas Constitution; and (4) their prior suit against Dr. Villasan for negligence in federal court filed on May 29, 2003 made the amendments to section 101.106(e) inapplicable to their state suit filed on September 22, 2003. As evidence of the federal suit, the O’Rourkes attached a copy of the first page of the complaint filed in federal court.

On August 30, 2004, the O’Rourkes filed their Second Amended Original Petition, but made no material changes in any of their negligence allegations. On that same date, the trial court conducted a hearing and orally announced that it intended to deny the relief requested by Dr. Villasan. On September 9, 2004, the trial court entered its written order denying Dr. Villa-san’s requested dismissal and request for summary judgment, without entering findings of fact or conclusions of law.

Statutory History and Construction

Because it is relevant to the resolution of the questions presented, we set out the full text of Code section 101.106 under which Dr. Villasan asserts a right to have the claims against him dismissed:

§ 101.106. Election of Remedies
(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 Supp.2005).

Revisions to this Code section in 2003 were part of a comprehensive effort by the Legislature to reform the tort system in Texas and part of a bill commonly referred to as House Bill Four. With respect to litigation against governmental entities, the revisions seek to simplify litigation by advancing to the filing of the original petition the plaintiffs final decision regarding whether the government official acted in the general scope of employment, rather than allowing plaintiffs to pursue alternative theories regarding the official’s employment status through the trial. The statute allows the governmental employee whose conduct is alleged to have been within the scope of employment to force the plaintiff to amend the suit and name the governmental entity as the sole defendant. Tex. Civ. PRac. & RemlCode Ann. § 101.106(f). The statute allows the government, when both the government and the employee are sued, to force the plaintiff to drop the employee from the suit. Tex. Civ. PRAC. & Rem.Code Ann. § 101.106(e). All of these provisions, together, create a procedural right. At the election of the government or its employee, the respective defendant may force the plaintiff to proceed in Texas Tort Claims Act (“TTCA”) (1) suits against the governmental entity alone in three possible circumstances: - (1) when the suit is initially filed against the governmental agency alone; (2) when the suit is initially filed against both governmental agency and its employees; and (3)when the suit is initially filed against the government employee when the employee’s conduct is alleged to have been within his scope of employment. Id. at § 101.106.

By filing an amended petition dropping UTMB as a defendant and leaving Dr. Villasan as the sole defendant, the O’Rourkes attempt to avoid the clear intent of the statute. We hold that under Code section 101.106, the governmental agency perfects the statutory right to a dismissal of its employee upon the filing of a motion to dismiss, and the employee may subsequently rely on the duty created by the motion to require the trial judge to dismiss the claims against him. Subsequent amended pleadings by the plaintiff filed after the government’s filing of its motion to dismiss the employee do not moot the right created by the filing of the motion under section 101.106.

The O’Rourkes argue that their amended petition filed after the government filed its motion to dismiss, but prior to the hearing on the motion, effectively dismissed the governmental entity as of the date it was filed, and, therefore, the parties are in the position they would have been in if the original petition had never been filed. Among other cases, they cite as authority for this argument Chamberlain v. McReight, 713 S.W.2d 372, 374 (Tex.Civ.App.-Beaumont 1986, writ ref'd n.r.e.). Chamberlain began as a suit against an oil company and its owner, and, by amended petition, the plaintiff omitted the owner. The analysis in Chamberlain relies on Rule 65 of the Texas Rules of Civil Procedure promulgated by the Texas Supreme Court, and not a legislatively created statutory right. As a result, Chamberlain, which cites Rule 65, and the other cases cited by the O’Rourkes relying on either Rule 65 or Rule 162 (Dismissal or Non-suit) are distinguishable. None of the cases 'cited by the O’Rourkes involve a statutory right of dismissal created by the Legislature.

Application of the Code Construction Act to section 101.106 reinforces our conclusion that we have properly interpreted this statute. When the Legislature in a statute uses the word “shall,” the Code Construction Act indicates that a duty is imposed. Tex. Gov’t Code Ann. § 311.016(2) (Vernon 2005). Section 101.106(e) provides that “the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” It follows, then, that at the moment UTMB filed a motion to dismiss a TTCA claim filed against both UTMB and its employee, a duty arose for the trial court to dismiss the claim against the government employee.

Our conclusion that a right attaches upon the government’s filing of its motion follows from the fact that section 101.106 makes the consequences of the plaintiffs’ choice in suing the governmental unit and its employee irrevocable. Tex Civ. PRac. & Rem.Code Ann. § 101.106(a). The term “irrevocable” is not defined by the statute, and is therefore construed according to the rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). “Irrevocable” is defined as “incapable of being recalled, or revoked: past recall: unalterable.” WebsteR’s ThiRD New INTERNATIONAL DICTIONARY 1196 (1986). The Legislature did not créate any exceptions in section 101.106 allowing TTCA claimants a- second election to choose the parties against whom they desired to lodge their suit. The language in the statute is crystal clear and not ambiguous.

The O’Rourkes request that we construe the statute to allow TTCA claimants two elections to determine against whom to proceed. We consider their request in light of the enactment of a comprehensive statute wherein the Legislature specifically dealt with each possible option regarding the parties to a TTCA suit: (1) when suit is filed against the governmental unit, suit or recovery against the individual employee regarding the same subject matter is barred by Code section 101.106(a); (2) when suit is filed against the government employee, suit or recovery by the plaintiff against the governmental unit regarding the same subject matter is barred absent consent of the governmental unit by Code section 101.106(b); and (3) when suit is filed against both employee and governmental unit, suit against the employee shall immediately be dismissed on the governmental unit’s filing of a motion to dismiss under Code section 101.106(e). Under this statute, when TTCA claimants elect to include the governmental unit as a party to a suit, whether alone or in conjunction with a governmental employee, TTCA claimants have made an irrevocable election of remedies that they will look solely to the governmental unit for compensation for injury. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(a).

By forcing TTCA claimants to make an election on the filing of the suit, the Legislature encumbered plaintiffs’ abilities under the Tort Claims Act to pursue, through trial, alternative theories at the same time — namely, that either the government employee acted within the scope of his authority, but in the alternative, and if not, then the governmental employee is individually liable. The Legislature’s apparent goal of reducing cost is enhanced by the amended statutory provisions because they narrow the issues for trial,, thereby reducing the delay and expense otherwise associated with discovery related to theories no longer relevant in light of the election made by claimants on their initial filing of suit.

To place the statutory provision in context, we note that an injured claimant’s ability to recover against the government, or its employees, in a personal injury or property damage case is limited by the doctrines of sovereign immunity and official immunity. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex.1994) (governmental immunity protected UTMB from liability for its physician’s failure to diagnose a broken hip); Texas Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 585 (Tex.2001) (Department of Criminal Justice shielded by sovereign immunity for its physician’s failure to diagnose fatal meningitis); Murk v. Scheele, 120 S.W.3d 865, 866 (Tex.2003) (University of Texas Health Science Center’s employee, a neurosurgeon, entitled to immunity for allegedly delaying spinal decompression surgery). The Texas Legislature, in enacting the Texas Tort Claims Act waived sovereign immunity “only to a limited degree.” Dallas County Mental Health v. Bossley, 968 S.W.2d 339, 343 (Tex.1998).

Official immunity, as contrasted with sovereign immunity that protects the government agency, may protect individual governmental employees from liability. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995); Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994). “Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.” City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). “The purpose of official immunity is to insulate the functioning of government from the harassment of litigation, not to protect erring officials.” Kassen, 887 S.W.2d at 8 (citing Westfall v. Erwin, 484 U.S. 292, 295, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988)). “Common law official immunity is based on the necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation.” Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex.2004).

With respect to medical decisions made by employees of governmental agencies, it appears that a TTCA claimant’s initial choice as to the proper parties may be a crucial decision because it is irrevocable. Official immunity does not necessarily extend to any and all medical decisions made by medical professionals employed by governmental agencies. Kassen, 887 S.W.2d at 11-12 (government-employed physicians may not be immune from tort liability arising from their negligent exercise of medical discretion).

.Since the remedy is affected by the TTCA claimant’s initial decision regarding who should be made a party in a TTCA suit under the amended provisions of section 101.106, the initial irrevocable decision in a suit involving government-employed medical professionals is critical. If the complaint alleges the government-employed medical professional negligently exercised medical discretion, and does not fall within the limited waiver of immunity under the TTCA, it appears that under section 101.106 the complaint should be made against the medical professional alone, and not the governmental agency. Before filing suit, a claimant considering a TTCA claim must carefully consider whether to allege that the medical decision in such a circumstance was made within the scope of the government employee’s authority. This is because, in general, a governmental agency is immune from medical negligence complaints, unless the complaint falls within the limited waiver provisions of the TTCA. See Miller, 51 S.W.3d at 587. Given the fact that an election is forced by section 101.106 at the time a TTCA claimant files suit, and the fact that the initial decision is irrevocable, the initial decision may determine the claimant’s ultimate success or failure.

Section 101.106, as amended, assumes that when the government agency is sued alone, or is sued together with the government’s employees, the theory of recovery will fall within the provisions of the TTCA making the government employees unnecessary parties to the suit.

Section 101.106 creates a procedure in such situations to allow government employees sued under these circumstances to quickly and easily obtain their removal as parties from these suits. Because Section 101.106 preserves injured claimants’ rights to obtain a remedy under the limited circumstances where the TTCA waives immunity and does not prohibit common law claims that are not subject to official immunity defenses, the Code’s election of remedies provisions neither enlarge nor constrict the potential recovery of claimants injured by actions of government employees. While electing to bring a TTCA claim rather than a common law medical negligence claim may have consequences due to the Legislature’s policy decision to make the decision irrevocable, elections of remedies among competing compensation schemes for injured claimants are not unknown to Texas law. For example, injured parties my elect to proceed as compensation claimants under the Worker’s Compensation Act, but in so doing waive their rights to proceed at common law. For that reason, in Medina v. Herrera, 927 S.W.2d 597, 598-599 (Tex.1996), the Texas Supreme Court held that an employee’s intentional tort claim against his employer was barred as a matter of law by his election of a worker’s compensation remedy.

The Legislature is empowered to define when, and under what terms, it desires to waive sovereign immunity from common law claims. See Texas Natural Resource Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex.2002). Injured claimants may still opt to proceed on viable common law claims against individual governmental employees, as common law claims are not proscribed by the amended statutory provisions of section 101.106. If claimants choose to pursue common law claims against government employees, they are opting out of their TTCA remedy.

In the trial court, and on appeal, all of the evidence showed that Dr. Villasan was an employee of UTMB. By suing both UTMB and Dr. Villasan, the O’Rourkes elected to prove in their case that Dr. Villasan’s medical decision was within the scope of his employment with UTMB. In order to recover for the actions of an official in the scope of his duties, claimants in a TTCA suit in which they join the governmental agency must prove allegations that come within the limited waiver of immunity provided by the Act. Tex. Civ. PRAC. & Rem.Code Ann. § 101.021 (limiting the liability of a governmental unit from the negligent conduct of an employee to' injuries arising from the operation or use of a motor-driven vehicle, or to injuries caused by the condition or use of tangible personal or real property.) The O’Rourkes sued both UTMB and Dr. Villasan when they filed their initial state court pleading. After filing an answer, UTMB filed a motion to dismiss Dr. Villasan, a procedural right created by section 101.106(e). This provision, on the filing of the motion, created a mandatory duty on the part of the trial court to dismiss the claims against Dr. Villasan.

While the O’Rourkes essentially argue that Rule 65 trumps section 101.106 to allow their dismissal of UTMB without affecting their suit Dr. Villasan, that argument fails. As mandated by the Civil Practice and Remedies Code, we apply the Code Construction Act to determine the impact of section 101.106. Tex. Crv. Piiac. & Rem.Code Ann. § 1.002(Vernon 2002).

Section 311.026 of the Code Construction Act provides that when a general provision conflicts with a special provision, both provisions shall be construed, if possible, to give effect to both; but, if the conflict is irreconcilable, the special provision prevails absent exceptions not pertinent in this case. Tex. Gov’t Code Ann. § 3Í1.026 (Vernon 2005). The O’Rourkes’ amended petition was filed pursuant to Rule 65 of the Rules of Civil Procedure, and Rule 65 is a general rule dealing with the consequences of amended pleadings. Rule 65 is not a specific rule addressing the consequences of filing amended pleadings under the TTCA.

Second, to the extent the Rules of Civil Procedure conflict with a statute, “the statute prevails unless the rule has' been passed subsequent to the statute and repeals the statute as provided by Texas Government Code section 22.004.” Johnstone v. State, 22 S.W.3d 408, 409 (Tex.2000). When a procedural “rule of the court conflicts with a legislative enactment, the rule must yield.” Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex.1971). There is a conflict between Rule 65, which states “the instrument for which it [the amended pleading] is substituted shall no longer be regarded as a part of the pleading in the record of the cause,” and Code section 101.106, a recently amended statute, that makes the filing of an initial pleading irrevocable. Further, the conflict between the rule and the statute is irreconcilable because an irrevocable pleading cannot be changed or altered while the • essential purpose of an amendment under Rule 65 is to allow alterations to prior pleadings.

Finally, in general, when applying rules of statutory construction the more recent enactment prevails. Since the amended provisions of section 101.106 were enacted more recently than the provisions of Rule 65, section 101.106 prevails over the rule. See Johnstone, 22 S.W.3d at 409.

In summary, section 101.106 is more specific than Rule 65 as applied to TTCA claims. Section 101.106 is a statute, whereas Rule 65 is not. Section 101.106 is the more recent provision between the competing provisions that the parties argue apply. Applying the rules of statutory construction guiding our resolution of the issue, we conclude that the O’Rourkes’ amendments of their pleadings, although permitted by the Texas Rules of Procedure, do not trump a statutory right of dismissal that vested upon the government’s filing its motion to dismiss the claims against its employee.

Under the pleading procedures governing this case, as modified by the Civil Practice and Remedies Code, the Legislature gave the O’Rourkes only one election to determine whether they wanted to proceed under a TTCA theory or under other potential theories. They elected to proceed under a TTCA theory. The statutes governing TTCA suits make the trial judge’s responsibility to dismiss the government’s employee mandatory when the government files a motion requesting that the claims against its employee be dismissed. The trial judge’s duty under these circumstances is not optional. We reject the O’Rourkes’ contention that Dr. Villasan did not have standing to complain about the trial judge’s violation of a mandatory duty to dismiss him from the suit.

Construction of Enabling Language

Alternatively, the O’Rourkes argue that their suit in federal court, filed prior to the effective date of the amendment to the Texas Civil Practice and Remedies Code, avoids the application of the amended provisions of Code section 101.106 to their state suit. We set out the enabling language of Code section 101.106, which provides:

Except as otherwise provided in this section or by a specific provision in an article, this Act applies only to an action filed on or after the effective date of this Act. An action filed before the effective date of this Act, including an action filed before that date in which a party is joined or designated after that date, is governed by the law in effect immediately before the change in law made by this Act, and that law is continued in effect for that purpose.

Act of June 2, 2003, 78th Leg., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847, 899.

Clearly, the suit filed in state court by the O’Rourkes on September 22, 2003 is an “action” contemplated by the Legislature in enacting the statute, and the state suit was filed after the date the amended provisions went into effect on September 1, 2003. However, prior to filing suit in state court, the O’Rourkes filed a suit in federal court on May 29, 2003 against the United States of America, The University of Texas Medical Branch, Galveston, Beth Serrano, M.D., Robert Leland Hardy, D.O., Antonio Villasan, M.D., and E. Barby, P.A. The only evidence in the trial court’s record regarding the federal suit was the first page of the complaint. From the federal complaint, we can determine that this action was a Federal Tort Claims Act case brought under Title 28, section 1346(b) of the United States Code, that there is an identity of plaintiffs between the O’Rourke’s federal action and the O’Rourke’s state action, and that there are defendants in the federal action that are not included in the state action. From the first page of the federal complaint, we cannot determine: (1) the nature of the complaints against the defendants beyond the fact that the O’Rourkes asserted a claim under the Federal Tort Claims Act; (2) the date their claims arose; or (3) whether their claims in the federal suit involve the same subject matter as those they asserted in the state action. Although as an appendix to their brief the O’Rourkes attached a copy of the federal court’s order dismissing their suit from federal court, and additional information concerning the subject matter of their federal suit is available therein, the order was not before the trial court and we therefore cannot consider it. See Carlton v. Trinity Univ. Ins. Co., 32 S.W.3d 454, 458 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).

The term “action” is not defined by the statute. Dr. Villasan argues that the federal and state suits are not the same actions. Dr. Villasan argues that the term “action” means “suit.” Dr. Villasan contends that since the state suit was filed after the effective date of section 101.106, and because the state suit is separate and distinct from the federal suit, the amended provisions of section 101.106(3) apply to the later filed state suit. Dr. Villasan cites Thomas v. Oldham, 895 S.W.2d 352 (Tex.1995). In Thomas, the Texas Supreme Court analyzed the meaning of the word “action” in connection with a prior version of section 101.106, and stated that the “term ‘action’ is generally synonymous with ‘suit,’ which is a demand of one’s rights in court.” Thomas, 895 S.W.2d at 356; see also Bradley v. Etessam, 703 S.W.2d 237, 241 (Tex.App.-Dallas 1985, writ ref'd n.r.e.) (action in section 10.01 [of article 4590i] means “suit.”); United Production Corp. v. Hughes, 137 Tex. 21, 152 S.W.2d 327, 330 (1941) (using “suit” and “action” synonymously).

The O’Rourkes, on the other hand, argue that they filed an “action” against Dr. Villasan before September 1, 2003, and that the term “action” is not confined to a specific suit. The O’Rourkes cite Bates v. Tesar, 81 S.W.3d 411, 428 (Tex.App.-El Paso 2002, no pet.) for the proposition that “[t]he Legislature’s adoption of ... general savings provisions indicates a general legislative policy that the repeal or amendment of any statute shall not affect the prior operation of the statute nor extinguish any liability incurred or affect any right accrued or claim arising before the repeal or amendment takes effect.” They argue that their action need only involve .the same subject matter to relate back and avoid the revisions to section 101.106. The O’Rourkes assert that the savings provision enacted by the Legislature with section 101.106 avoids an ex post facto application of the election of remedies provisions of the statute to this case. The O’Rourkes, however, cite no cases holding that the Legislature intended general savings provisions such as that enacted with section 101.106 to operate in a manner to allow separately filed suits to relate back to earlier filed suits and thereby avoid the application of statutory amendments.

In analyzing the savings provision of section 101.106, we look to the common meaning of the term “action,” as required by section 311.011 of the Code Construction Act. The Black’s Law Dictionary definition of “action” states “The term [action] in its usual legal sense means a lawsuit brought in a court; a formal complaint within the jurisdiction of a court of law.” Black’s Law DictionaRY 28 (6th ed.1990). “Action” is defined in Webster’s Dictionary as “a deliberative or authorized proceeding.” WebsteR’s Third New International Dictionary 21 (1986). Based upon the common usage of “action” as reflected by Black’s, Webster’s and prior opinions, we agree that “action” as it is commonly used in the context of a savings provision means “suit.” Since the federal suit is a separate proceeding from the state suit, it follows that it is not the same action.

We perceive the question of whether both a federal and state suit assert the same causes of action as being different from the question , of whether they are the same action. They are clearly different actions in the sense they are filed in separate jurisdictions.

The parties bring no statutes to our attention wherein the Legislature expresses an intent to “save” a later filed state suit from the application of an amended statute by virtue of the earlier filing of a federal suit, and we have found none. Since the state suit is “an action” filed after September 1, 2003, and because we find no specific provision allowing the state suit to relate back to an earlier filed federal suit for purposes of saving the state suit from the amended provisions of this statute, we hold the amended provisions of section 101.106 apply to the state suit filed after the amended provisions went into effect.

Trial Record

A separate and alternative basis to hold that the federal fifing does not avoid the application of the amended provisions of the statute exists on the trial court’s record. Even if we were to accept the O’Rourkes’ argument that the savings provision of section 101.106 should be interpreted to allow a relation back doctrine to operate, a proposition that we have rejected, the O’Rourkes recognize in their brief that for such a doctrine to apply both the federal and state suits must involve the same subject matter. In the trial court the O’Rourkes failed to establish an identity between the subject matter of the federal suit and that of the state suit. From the first page of their federal petition, which is all the evidence regarding the subject matter of the federal suit before the judge in the state case, we cannot determine that the subject matter of the claims asserted in the federal suit are the same as those the O’Rourkes assert in state court.

Even if we were to accept the argument that a relation back doctrine should be created in these circumstances, it would be the claimants’ burden to plead and to produce evidence to show that the doctrine applies. See Willis v. Maverick, 760 S.W.2d 642, 647 (Tex.1988) (burden on plaintiff to plead and prove exceptions to application of statute of limitation); Weaver v. Witt, 561 S.W.2d 792, 794 n. 2 (Tex.1977) (suspending operation of a statute of limitations is the burden of the party pleading suspension); Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 880-81 (1962) (burden of pleading and proving that defendant was absent from state to avoid limitations is on the plaintiff). Thus, even if a relation back doctrine applies, because the evidence in the trial court fails to show an identity between the subject matter of the suit in federal court and the suit in state court, the trial judge erred in denying Dr. Villasan’s motion to dismiss.

Application of Amended Statute Not Prohibited

Our interpi'etation of the savings provision does not create a prohibited retroactive application of law. The amended provisions of section 101.106 apply to “an action filed” on or after September 1, 2003, and do not affect actions filed prior to September 1, 2003. The amendments operate prospectively on suits filed after the amendments, and do not annul or affect prior filings.

We generally presume that the Legislature intends an amendment to operate prospectively and not retroactively. Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex.2002). However, this general rule is inapplicable where the amendment is procedural or remedial. Id. As explained above, the election of remedies aspect of the amended section 101.106 does not enlarge or diminish the potential recovery of a claimant entitled to recover under the TTCA. Because the amendments do not change the amount of recovery or the right to recover, the amendment is procedural. See generally Blonstein v. Blonstein, 831 S.W.2d 468, 472 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (“A procedural amendment is one which effects the manner in which a suit is conducted with application to pleading, evidence, etc. Procedure involves every step in a trial or appeal.... Substantive law on the other hand, relates to the rules and principles which fix and declare the primary rights of individuals and provides the type of remedy available in case of invasion of those rights.” [citations omitted] ) The amendments are also remedial, given the Legislature’s intent to simplify litigation against governmental entities under the TTCA. “A remedial matter pertains to the practice and procedure by which substantive law is made effective.” Id. Therefore, the general rule proscribing the retroactive application of amendments of statutes do not apply to the type of amendments made to section 101.106.

Moreover, “[a] retroactive application of a statute only violates our Constitution if, when applied, it takes away or impairs vested rights acquired under existing law.” Subaru, 84 S.W.3d at 219. The amendments to section 101.106 of the TTCA do not impair vested property rights, because at common law the government was immune from suit. Claimants’ rights to recover for injuries by government employees for actions in the scope of their employment are allowed by virtue of the sovereign’s waiver of immunity under the TTCA. See City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex.1997) (“it is important to remember that the Tort Claims Act does not create a cause of action; it merely waives sovereign immunity as a bar to a suit that would otherwise exist.”) As such, the “rights” are purely statutory.

In general, persons do not have a vested right in the continuance of present law in relation to a particular subject; the Legislature may change laws so long as they do not destroy or prevent the adequate enforcement of vested rights. See Subaru, 84 S.W.3d at 219. In City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009 (1937), the Texas Supreme Court explained that a statutory right created to receive payments from a state pension plan was subordinate to the right of the Legislature to completely abolish or reduce payments under the plan. See 101 S.W.2d at 1013. This rule, that the government may change rules that have not vested in statutorily created government benefits plans, remains a viable doctrine. Reames v. Police Officers’ Pension Bd. of City of Houston, 928 S.W.2d 628, 632 (Tex.App.-Houston [14th Dist.] 1996, no writ).

On the date the statute went into effect, September 1, 2003, the O’Rourkes had the right to sue either Dr. Villasan or UTMB and to assert claims either at common law or under the TTCA. Therefore, the amended statute is not retroactive in the sense that it prohibited or barred prior claims by virtue of its enactment. Even if it arguably affected TTCA claimants’ options of proceeding against both the government entity and the government entity’s employee and asserting alternative theories of recovery, we see no reason to treat procedural provisions .under the TTCA differently from procedural rules under government pension plans regarding whether such procedural rules create vested rights.

In summary, the O’Rourkes’ options with respect to procedurally posturing their case under the pre-amended statutory scheme of the TTCA were not vested rights. Because they had no vested right in a statutory procedure under the pre-amended version of the TTCA to proceed against both Dr. Villasan and UTMB, it follows that the Legislature could amend and alter the procedures under section 101.106 without running afoul of Article I, section 16 of the Texas Constitution.

No Open Courts Violation

The O’Rourkes also contend that the amendments to section 101.106, if applied to their state suit against Dr. Villa-san, violate the open courts guarantee of the Texas Constitution. That guarantee provides, “... All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Tex. Const, art. I, § 13. Because the provision affects common law claims, and not statutory claims, the provision does not apply to the TTCA. In Thomas, the Texas Supreme Court explained:

The Tort Claims Act broadened, rather than restricted, an injured party’s remedies. At common law, municipalities performing governmental functions were completely immune from liability. The Tort Claims Act created a limited waiver of that immunity. Although a plaintiff who pursues the statutory remedy against the government may lose his or her common law remedy against the employee, the plaintiff is not required to follow this course. He or she may still opt to pursue the full common law remedy against the responsible employee, foregoing or postponing any attempt to recover from the government. Section 101.106 thus does not violate the Texas Constitution.

Thomas, 895 S.W.2d at 357-58. The Thomas Court rejected a claimant’s challenge under the open courts provision to an earlier version of section 101.106 because Article I, section 18 of the Texas Constitution prohibits only the Legislature’s limiting common law causes of action, and a TTCA claim did not exist at common law. Id. For the same reasons, the O’Rourkes’ open courts argument under amended Code section 101.106 fails.

No Waiver

Finally, the O’Rourkes invite us to affirm the trial court’s decision because “the party challenging the denial [of Dr. Villa-san’s motion to dismiss] has failed to challenge an alternate ground for the court’s ruling.” They argue that because their open courts argument was urged in the trial court as a ground to deny Dr. Villa-san’s motion to dismiss, and was not challenged in the trial court, we are required to affirm the ruling of the trial court. As authority for this proposition, they cite Stephens v. Dolcefino, 126 S.W.3d 120, 130 (Tex.App.-Houston [1st Dist.] 2003, pet. filed). However, our review of Stephens reveals that it stands for the proposition that an appellate court can find that a party, on appeal, waived an issue by inadequately briefing the issue. Stephens does not stand for the proposition that a waiver occurs where a response to a summary judgment or motion to dismiss contains arguments to which the other side fails to object. Id.

Dr. Villasan, on appeal, adequately briefed why the open courts provision is not applicable to a TTCA case. We decline the invitation to create a rule that a summary judgment movant must file an objection to a summary judgment response in order to preserve the issue for appeal.

Conclusion

In conclusion, we sustain Dr. Villasan’s first issue, and hold that he was entitled to dismissal as a matter of law under the provisions of section 101.106(e) of the Texas Civil Practice and Remedies Code. We reverse the trial court’s order denying Dr. Villasan’s motion to dismiss and render judgment dismissing the claims against Dr. Villasan.

REVERSED AND RENDERED.

      . Section 101.106 is part of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 1997 & Supp.2005).