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Brown v. Xie

The trial court erred by denying the motion to dismiss Ke-Ping Xie's claims against the hospital employees for defamation. Houston's 1st Court of Appeals, No. 01-05-00137-CV.

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OPINION

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.

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