Baylor College of Medicine v. John David Tate, Jr.

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-01-00636-CV

____________

BAYLOR COLLEGE OF MEDICINE,

Appellant

V.

JOHN DAVID TATE, JR., Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2000-47325

O P I N I O N

Baylor College of Medicine (Baylor) brings this accelerated appeal contesting

the trial court's denial of its motion for summary judgment. We dismiss the appeal

for lack of jurisdiction.

FACTS

The underlying suit for personal injury arose out of alleged medical

malpractice. On July 16, 1998, John Tate Jr. (Tate) received treatment at Ben Taub

Hospital (Ben Taub) for a broken ankle. Ben Taub is owned and operated by the

Harris County Hospital District (the District). The District staffs Ben Taub with

resident physicians from Baylor and the University of Texas College of Medicine.

Two of Baylor's doctors, Dr. Lindsey and Dr. Vagner, provided treatment to Tate's

ankle which required surgery. Tate was released on July 23, 1998. He had follow up

visits on August 7, September 3, and October 1, 1998, with Dr. Goldberg and Dr.

Bartz, also Baylor orthopedic surgery residents. In mid-October, Tate received

treatment in a Conroe hospital for an infection related to his surgery. Tate brought

suit based on medical negligence against Baylor, Ben Taub, the District, and the

doctors who treated him.

Baylor filed a motion for summary judgment, asserting that it was immune

from liability based on the language in Texas Health and Safety Code section 312.006

and that it could only be liable if immunity was waived under the Texas Torts Claims

Act (TTCA). It argued that, because Tate did not provide it with six months notice

of his claims pursuant to section 101.101(a), it was immune from liability. Tate

responded that the language of section 312.006 only provides a limitation on

damages; it neither provides immunity, nor adopts any of the procedural rules found

in the TTCA.

In its order denying Baylor's motion for summary judgment, the trial court held

that Baylor is a supported medical school under chapter 312 of the Texas Health and

Safety Code; that chapter 312 provides only the damages limitation found in section

101.023(a) of the TTCA, not the conferral of immunity; and that the notice

requirement and the waiver of immunity provision of the TTCA do not apply to a

supported medical school. The trial court expressly declined to decide whether Tate

had provided proper notice of its claim to Baylor. Baylor prosecutes this appeal from

that order.

Jurisdiction

Generally, a Texas appellate court has jurisdiction to hear only an appeal from

a final judgment. Jack B. Anglin Co. v. Tipps , 842 S.W.2d 266, 272 (Tex. 1992). A

denial of a motion for summary judgment is not a final judgment and is therefore

generally not appealable. Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d 623, 625

(Tex. 1996). However, appellate courts have jurisdiction to consider immediate

appeals of interlocutory orders if a statute explicitly provides appellate jurisdiction.

Stary v. DeBord , 967 S.W.2d 352, 352-53 (Tex. 1998); New York Underwriters Ins.

Co. v. Sanchez , 799 S.W.2d 677, 679 (Tex. 1990); see also Tex. Civ. Prac. & Rem.

Code Ann. § 51.014 (Vernon Supp. 2002) (statutory list of appealable interlocutory

orders). We construe the statute authorizing interlocutory appeals strictly because it

"is a narrow exception to the general rule that only final judgments and orders are

appealable." Texas Dept. of Transp. v. City of Sunset Valley , 8 S.W.3d 727, 730

(Tex. App.--Austin 1999, no pet.) (citing America Online, Inc. v. Williams , 958

S.W.2d 268, 271 (Tex. App.--Houston [14th Dist.] 1997, no pet.)); see also City of

Austin v. L.S. Ranch, Ltd. , 970 S.W.2d 750, 753 (Tex. App.--Austin 1998, no pet.);

Tober v. Turner of Texas, Inc ., 668 S.W.2d 831, 835 (Tex. App.--Austin 1984, no

writ).

Section 51.014(5)

Baylor argues that we have jurisdiction over this appeal pursuant to section

51.014(5) of the Texas Practice and Remedies Code, which provides that "a person

may appeal from an interlocutory order of a district court . . . that denies a motion for

summary judgment that is based on an assertion of immunity by an individual who

is an officer or employee of the state or a political subdivision of the state." Tex. Civ.

Prac. & Rem. Code Ann. § 51.014 (5) (emphasis added). On appeal, Baylor

contends that its motion for summary judgment is based in part on the doctors' (1)

official immunity, and that it is entitled to the benefits of section 51.014(5) based on

its having been sued on the theory of vicarious liability.

In support of its argument, Baylor cites City of Houston v. Swindall and State

v. McGeorge . We address these cases in turn.

In City of Houston v. Swindall , the City brought an interlocutory appeal from

the denial of a motion for summary judgment. 960 S.W.2d 413, 414 (Tex.

App.--Houston [1st Dist.] 1998, no pet.). Swindall argued that we did not have

jurisdiction because the City's claim of immunity was based on the theoretical

assertion of official immunity by an unnamed defendant. Id . at 416. In holding that

the case was properly before us, we recognized that the supreme court had recently

stated that an intermediate court has jurisdiction over an interlocutory appeal, "if the

government bases its theory of sovereign immunity on either the actual or

hypothetical assertion of official immunity." Id . (citing City of Beverly Hills v.

Guevara , 904 S.W.2d 665 , 656 (Tex. 1995)).

In State v. McGeorge , the State appealed the trial court's denial of its motion

for summary judgment. 925 S.W.2d 105, 107 (Tex. App.--Houston [14th Dist.]

1996, pet. denied). The appellate court held that it had jurisdiction over the appeal

because the phrase, "assertion of immunity by an individual who is an officer or

employee of the state," is "satisfied where a claim of immunity by a governmental

entity in its motion for summary judgment is based on an assertion of official

immunity of an employee, even where, as here, the employee is neither a movant for

summary judgment or even a party to the suit." Id .

Baylor correctly points out that, based on these two cases, it is not necessary

that the individual claiming official immunity be a party to the summary judgment.

Swindall , 960 S.W.2d at 416 ; McGeorge , 925 S.W.2d at 107 . However, both cases

require that the summary judgment motion be based on the assertion of official

immunity by an individual and liability of the governmental entity premised on

vicarious liability. Swindall , 960 S.W.2d at 416 ; McGeorge , 925 S.W.2d at 107 .

Baylor makes an argument that its summary judgment motion is based on the

assertion of immunity by the doctors. After reviewing the summary judgment motion

and all supplemental motions for summary judgment, we conclude that its motion was

not based on the assertion of immunity by the doctors. Indeed, in their answer, the

doctors did not assert the affirmative defense of official immunity. In addition,

although plaintiffs sought recovery from Baylor based on both direct negligence and

vicarious liability, Baylor's motion for summary judgment addressed only direct

negligence. Accordingly, section 51.014(5) does not afford appellate jurisdiction

over this interlocutory appeal. See City of Houston v. Kilburn , 849 S.W.2d 810, 812

(Tex. 1993) (holding that court of appeals did not have jurisdiction because "city

employee never asserted the affirmative defense of qualified immunity, nor filed his

own motion for summary judgment on the issue of qualified immunity"); Austin

Indep. Sch. Dist. v. Gutierrez , 54 S.W.3d 860 , 862 n.2 (Tex. App.--Austin 2001, no

pet.) (concluding that it had no jurisdiction to consider denial of summary judgment

because it was not based on assertion of immunity by individual officer or employee

of state).

Section 51.014(8)

Baylor alternatively argues that jurisdiction is conferred by section eight, which

provides that a person may appeal from an interlocutory order that "grants or denies

a plea to the jurisdiction by a governmental unit as that term is defined in Section

101.001." Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (8). State agencies are

"governmental units" under section 101. Tex. Civ. Prac. & Rem. Code Ann. §

101.001 (3)(a) (Vernon Supp. 2002). As a defined "supported medical school,"

Baylor is statutorily declared to be a state agency for limited purposes, as applicable

in this case. Tex. Health & Safety Code Ann. § 312.007 (Vernon Supp. 2002).

As a prerequisite in deciding whether this Court has jurisdiction to address this

interlocutory appeal, we must first determine whether Baylor's motion for summary

judgment and subsequent motions can be construed as a plea to the jurisdiction. We

recognize that the nature of a pleading is determined by its substance, not by its

format or caption. Tex. R. Civ. P. 71; Toubaniaris v. American Bureau Shipping, 916

S.W.2d 21, 23 (Tex. App.--Houston [1st Dist.] 1995, no writ). Its substance is

determined by what effect it will have on the proceeding if granted. Austin

Neighborhoods Council v. Board of Adjustment , 644 S.W.2d 560, 565 (Tex.

App.--Austin 1982, writ ref'd n.r.e.).

To determine the nature of Baylor's pleading, we must identify its asserted

basis for relief. We examine Baylor's motion for summary judgment to determine

whether it should be considered as a plea to the jurisdiction for purposes of analysis

under section 51.014(8).

There is some confusion whether, in its motion for summary judgment, Baylor

claimed immunity from suit, immunity from liability, or both. Immunity from suit

and immunity from liability are separate principles. Texas Dep't Of Transp. v. Jones ,

8 S.W.3d 636, 638 (Tex. 1999). They afford the State and its agencies distinct

protections, and their procedural postures are entirely different. Perhaps the greatest

difference between these types of immunities is their respective jurisdictional

ramifications.

Immunity from suit prohibits an action against the State unless consent to the

suit has been expressly provided. Id . It is the burden of the party suing the State to

establish the State's consent, by alleging either a statute or another express legislative

permission. Id . Immunity from suit defeats a trial court's subject matter jurisdiction

and is properly asserted in a plea to the jurisdiction. Id . at 638-39.

By contrast, immunity from liability prohibits adverse judgments against the

State even if there is consent to sue. Id . This type of immunity is an affirmative

defense, which must be pleaded to avoid waiver. Id . The trial court's jurisdiction is

unaffected by immunity from liability. Id . The appropriate procedural mechanism

to assert immunity from liability is in a motion for summary judgment.

In section 51.014(8), the Legislature intended that interlocutory appeal be

available only to challenge the granting or denial of a plea to the jurisdiction by a

governmental unit. Clearly, this section applies to, among other things, assertions of

immunity from suit. It does not apply to assertions of immunity from liability.

Hence, it is necessary to determine the nature of Baylor's claim.

In Baylor's third amended original answer, it asserted that it is immune from

liability and that no waiver has occurred pursuant to section 101.021 (which waives

immunity from liability). Tex. Civ. Prac. & Rem. Code Ann. § 101.021

(Governmental Liability). In Baylor's first motion for summary judgment, it asserted

immunity from liability pursuant to section 312.006. Tex. Health & Safety Code

Ann. § 312.006 . Baylor argues that the notice provisions provided for in the TTCA

apply to Tate's claims. It contends that, because Tate failed to give notice in a timely

manner, it was entitled to summary judgment. Throughout the motion, Baylor

asserted immunity from liability . Baylor also detailed the proper motion for summary

judgment standard of review . Most importantly, Baylor did not challenge the trial

court's jurisdiction to hear the case.

In its reply to Tate's response to the summary judgment motion, Baylor argued

that it was entitled to summary judgment because Tate failed to give notice. Baylor

concluded the reply by stating, "it is clear that [Tate's] evidence fails to create an

issue of material fact on the claim that Baylor had actual notice of its culpability for

an injury to John Tate." Once again, Baylor did not assert that the trial court lacked

jurisdiction.

In its supplemental motion for summary judgment and motion to reconsider

motion for summary judgment, Baylor asserted that it is entitled to summary

judgment on two bases: (1) it is statutorily immune from liability and (2) Tate failed

to give notice. In this supplement, Baylor continued to assert that it was "not liable

( i.e ., is immune from liability)." In interpreting the phrase, "is not liable" in section

312.006, Baylor argued that "[s]uch words can have no meaning other than 'is

immune from liability.'" Baylor also made numerous references to section 101.021

of the TTCA. In fact, one of its headings is entitled, "Plaintiff's Claim Does Not Fall

Within TTCA Section 101.021 Waiver of Immunity." (2)

Finally, in its second motion to reconsider motion for summary judgment,

Baylor continued to argue that section 312.006 grants it immunity from liability.

Once again, Baylor stated that Chapter 312 of the Health and Safety Code lends itself

to only one interpretation: that Baylor is not liable ( i.e . immune from liability).

References to immunity from liability and section 101.021 of the TTCA are also

found throughout the motion.

After reviewing Baylor's answer and the content of the numerous motions for

summary judgment, we can conclude only that Baylor was asserting a motion for

summary judgment based on immunity from liability and not a plea to the jurisdiction

based on immunity from suit. We hold that Baylor's motion for summary judgment

cannot be construed as a plea to the jurisdiction because the content of the motion did

not assert that the trial court lacked subject matter jurisdiction. Further, immunity

from liability, which Baylor clearly asserted, would not have properly been raised in

a plea to the jurisdiction because that affirmative defense does not deprive the court

of subject matter jurisdiction. Tex. Dep't. of Transp ., 8 S.W.3d at 638.

Conclusion

We dismiss the appeal for lack of jurisdiction.

Adele Hedges

Justice

Panel consists of Justices Mirabal, Hedges, and Jennings.

Publish. Tex. R. App. P. 47.

1. Doctors Goldberg, Vagner, Bartz, and Lindsey.

2. Section 101.021 provides a waiver of immunity from liability.