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Affirmed in Part and Reversed and = Remanded in=20 Part, and Majority and Dissenting Opinions filed January 22,=20 2008.

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-05-00828-CV

NO.=20 14-06-00197-CV

____________

 

CARMELITA = ESCALANTE, M. D.,=20 E. EDMUND KIM, M. D., EDGARDO RIVERA, M. D., AND FRANKLIN C. WONG, = M. D.,=20 Appellants

 

V.

 

DONITA ROWAN AND = JAMES NIESE,=20 Appellees

 

______________

 

DONITA ROWAN=20 AND JAMES NIESE, = Appellants

 

V.

 

CARMELITA=20 ESCALANTE, M. D., E. EDMUND KIM, M. D., EDGARDO RIVERA, M. D., AND = FRANKLIN C. WONG, M. D., = Appellees

 

 

On Appeal from the = 164th District Court

Harris County, = Texas

Trial Court Cause = No. 04-64492

 

 

M A J O R=20 I T Y   O P I N I O N

This is a=20 consolidated appeal.  In cause number 14-05-00828-CV, = appellants,=20 Carmelita Escalante, M. D., E. Edmund Kim, M. D., Edgardo Rivera, = M. D.,=20 and Franklin C. Wong, M. D. (the Adoctors@), filed=20 an interlocutory appeal from the trial court=3Ds denial=20 of their motion to dismiss appellees Donita Rowan and James=20 Niese=3Ds[1]=20 medical malpractice lawsuit against them. In cause number = 14-06-00197-CV,=20 Rowan and Niese appeal the trial court=3Ds granting=20 of the doctors=3D = motion=20 for final summary judgment.  We affirm the denial of the = motion to=20 dismiss and we reverse the summary judgment.

Factual=20 and Procedural Background

In the=20 fall of 2000, Rowan was diagnosed with Stage II metastatic breast=20 cancer.  At the time of Rowan=3Ds initial=20 diagnosis, Rowan=3Ds breast=20 cancer was regionally metastasized to her lymph nodes.  Prior = to=20 seeking treatment at the University of Texas M. D. Anderson Cancer = Center=20 (AM. D.=20 Anderson@), Rowan=20 received treatment for her initial diagnosis of breast cancer, = including=20 surgery, chemotherapy, and radiation, at other medical facilities = in=20 Houston.

The=20 defendant doctors are all employed by M. D. Anderson.  In = November=20 2001, Rowan became a patient of Dr. Rivera.  In December = 2001, she=20 became a patient of Dr. Escalante.  In September 2002, Dr. = Kim=20 interpreted a whole body bone scan of Rowan and in May of 2003, = Dr. Wong=20 interpreted a second whole body bone scan.  Both Dr. Kim and = Dr. Wong=20 concluded there was no active bony metastasis present.  In = the late=20 summer of 2003, the recurrence of Rowan=3Ds cancer=20 was diagnosed, this time in her liver.  According to Dr. = Rivera,=20 patients who experience metastatic cancer with transfer to the = liver or=20 another visceral organ have a five-year survival rate of fifteen = to twenty=20 percent at the time of diagnosis and the disease is considered to = be=20 incurable with a median survival of two = years.

In=20 November 2004, Rowan and Niese filed suit against the doctors = alleging the=20 doctors were negligent as a result of their delay in diagnosing = the=20 recurrence of Rowan=3Ds=20 cancer.  In May 2005, the doctors filed a motion to dismiss = Rowan and=20 Niese=3Ds lawsuit=20 pursuant to section 101.106(f) of the Texas Civil Practice and = Remedies=20 Code.[2] =20 The trial court denied the doctors=3D = motion.  On August 4, 2005, the doctors appealed the trial=20 court=3Ds denial=20 of their motion to dismiss pursuant to section 51.014(a)(5) of the = Texas=20 Civil Practice and Remedies Code.[3]

<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: = Shruti">

On October=20 17, 2005, the doctors filed a motion for summary judgment claiming = that=20 Rowan and Niese=3Ds causes=20 of action were barred as a matter of law because Texas does not = recognize=20 the loss-of-chance doctrine.  On November 7, 2005, Rowan and = Niese=20 filed their summary judgment response with attached evidence as = well as an=20 amended petition.  The trial court conducted an oral hearing = on the=20 doctors=3D = motion=20 for summary judgment on November 14, 2005.  Rowan and Niese = both=20 appeared at the hearing.  Neither Rowan nor Niese objected to = the=20 summary judgment hearing on the basis of the stay in place as a = result of=20 the doctors=3D = interlocutory appeal of the trial court=3Ds earlier=20 denial of their motion to dismiss.[4] =20 The trial court granted the doctors=3D = motion=20 for summary judgment on November 18, 2005.  Rowan and Niese = filed a=20 motion for reconsideration of the summary judgment/motion for new = trial=20 (Amotion for=20 new trial@) in which=20 they raised, for the first time, the issue of the stay in place as = a=20 result of the doctors=3D = interlocutory appeal.  The trial court denied Rowan and=20 Niese=3Ds motion=20 for new trial and this appeal followed.[5]

Discussion

In their=20 appeal from the trial court=3Ds final=20 summary judgment, Rowan and Niese raise three issues.  In = their first=20 issue, Rowan and Niese contend the trial court=3Ds summary=20 judgment is void because it was entered in violation of the stay = in place=20 as a result of the doctors=3D = interlocutory appeal of the trial court=3Ds denial=20 of their motion to dismiss.  In their second issue, Rowan and = Niese=20 assert the trial court erred in granting the doctors=3D = motion=20 for summary judgment as it was not addressed to their causes of=20 action.

I.       =20 The Trial Court=3Ds Summary=20 Judgment is Not Void

A.     =20 The Standard of Review

In their=20 first issue, Rowan and Niese assert the trial court=3Ds summary=20 judgment was issued in violation of the statutory stay created by = section=20 51.014(b) of the Texas Civil Practices and Remedies Code and is = therefore=20 void.  It is well settled in Texas that statutory = interpretation=20 presents a question of law subject to de novo review. =  Mitchell=20 Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997). A = trial=20 court has no discretion when evaluating a question of law. =  See=20 Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996); Walker v. = Packer, 827 S.W.2d 833, 840 (Tex. 1992).

B.     =20 Section 51.014(b) Creates a Mandatory Stay

In their=20 response to Rowan and Niese=3Ds first=20 issue, the doctors appear to argue that there was no stay imposed = on the=20 trial court=3Ds=20 proceedings when the doctors filed their interlocutory = appeal.  We=20 disagree, as the clear language of the statute imposes an = automatic stay=20 on all proceedings in the trial court as soon as an interlocutory = appeal=20 is filed.  Tex. Civ. Prac. & Rem. Code Ann. ' = 51.014(b); Watts v. Rodriguez, 185 S.W.3d 931, 932 (Tex.=20 App.CAustin=20 2006, no pet.) (per curiam).

C.     =20 The Trial Court Had Jurisdiction and Thus The Summary Judgment is = Not=20 Void

As we have=20 determined there was an automatic stay in place once the doctors = filed=20 their interlocutory appeal, we now must decide if a summary = judgment=20 granted while that stay was in place is void.  In this = appeal, Rowan=20 and Niese do not argue that the trial court=3Ds summary=20 judgment is voidable.  Instead, they very specifically argue = only=20 that, because the trial court acted while the  interlocutory = appeal=20 stay was in place, the trial court=3Ds summary=20 judgment is void.

Errors,=20 other than a lack of jurisdiction, such as a court=3Ds action=20 contrary to a statute or statutory equivalent, merely render the = judgment=20 voidable so that it may be corrected through the ordinary = appellate=20 process or other proper procedures.  Reiss v. Reiss, = 118=20 S.W.3d 439, 443 (Tex. 2003).  There was no contention in the = trial=20 court or in this appeal that the trial court did not have = jurisdiction,=20 and we conclude that the section 51.014(b) stay does not deprive = the trial=20 court of jurisdiction.  Therefore, the trial = court=3Ds summary=20 judgment is not void.

II.      =20 Rowan and Niese Did Not Preserve Error as to Any Complaint that = the=20 Summary Judgment is Voidable Because of the Stay

Even if=20 Rowan and Niese=3Ds first=20 issue could be construed as arguing the trial court=3Ds summary=20 judgment is voidable because it was entered in violation of the=20 interlocutory stay, the result is the same because Rowan and Niese = did not=20 preserve error as to this complaint.

An=20 interlocutory appeal of the denial of a motion to dismiss a = lawsuit based=20 on the assertion of immunity stays all proceedings in the trial = court=20 pending resolution of the appeal.  Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 51.014(a)(5) & (b).  However, the failure to object based = on this=20 stay waives any error that the trial court may have committed by = failing=20 to stay the proceedings during the pendency of the interlocutory=20 appeal.  Henry v. Flintrock Feedstocks, Ltd., No.=20 07-04-0224-CV, 2005 WL 1320121, at *1 (Tex. App.CAmarillo=20 June 1, 2005, no pet.) (mem. op.)(holding a procedural error must = be=20 preserved by timely action of the party bringing the error to the = trial=20 court=3Ds=20 attention)).[6] =20 A summary judgment is a trial within the meaning of section = 51.014(b) of=20 the Texas Civil Practice and Remedies Code. =20 Lee-Hickman=3Ds=20 Investments v. Alpha Invesco Corp., 139=20 S.W.3d 698, 701 (Tex. App.CCorpus=20 Christi 2004,  no pet.).  Here, Rowan and Niese did not = object=20 to the trial court hearing the doctors=3D = motion=20 for summary judgment.  In addition, Rowan and Niese filed = amended=20 discovery responses, a summary judgment response, and an amended = petition=20 prior to the hearing on the doctors=3D = motion.  We hold Rowan and Niese waived their complaint = concerning=20 the interlocutory stay and removed any bar to the trial court = hearing and=20 ruling on the doctors=3D = motion=20 for summary judgment.

Because we=20 have determined the trial court=3Ds summary=20 judgment is not void, and that Rowan and Niese failed to preserve = error as=20 to any objection that the summary judgment is voidable based on = the stay,=20 we overrule Rowan and Niese=3Ds first=20 issue.

III.     =20 The Loss-of-Chance Doctrine

In their=20 second issue, Rowan and Niese contend the trial court erred in = granting=20 the doctors=3D = motion=20 for summary judgment as the motion was not addressed to their = causes of=20 action.  We agree.

A.     =20 The Standard of Review

The movant=20 for a traditional summary judgment has the burden to show there is = no=20 genuine issue of material fact and it is entitled to judgment as a = matter=20 of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 = (Tex.=20 1985). In determining whether there is a genuine fact issue = precluding=20 summary judgment, evidence favorable to the non-movant is taken as = true=20 and the reviewing court makes all reasonable inferences and = resolves all=20 doubts in the non-movant=3Ds favor.=20 Id. at 548B49. We=20 review a trial court=3Ds summary=20 judgment de novo. Valence Operating Co. v. Dorsett, 164 = S.W.3d 656,=20 661 (Tex. 2005).

B.     =20 Sole Ground in Motion for Summary = Judgment

In their=20 second amended petition, Rowan and Niese alleged medical = malpractice=20 causes of action against the doctors.  To recover on a = medical=20 malpractice claim, a plaintiff must establish the following = essential=20 elements: (1) a legally cognizable duty requiring the health care = provider=20 to conform to a certain standard of care or conduct; (2) a breach = of that=20 standard; (3) injury; and (4) a reasonably close causal connection = between=20 the breach of the standard and the injury suffered by the = plaintiff. =20 Dubose v. Worker=3Ds Medical,=20 P. A., 117=20 S.W.3d 916, 919 (Tex. App.CHouston=20 [14th Dist.] 2003, no pet.).  In their motion for summary = judgment,=20 the doctors asserted one ground - the plaintiffs are effectively = seeking=20 to recover for an alleged loss of chance of survival, but as a = matter of=20 law Texas does not allow such a recovery.  In Kramer, = the=20 Texas Supreme Court held that Texas does not allow Arecovery=20 for lost chance of survival or cure in medical malpractice=20 cases.@ =20 Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397, 398 = (Tex.=20 1993). 

The Kramer = court=20 stated:

The effect of these [Texas] standards is = to bar=20 recovery where the defendant=3Ds negligence deprived the tort victim of = only a=20 50% or less chance of avoiding the ultimate harm.  Hence, = where=20 preexisting illnesses or injuries have made a patient=3Ds chance of avoiding the ultimate harm = improbable=20 even before the allegedly negligent conduct occursBi.e., the patient would die or suffer = impairment=20 anywayBthe application of these traditional = causation=20 principles would totally bar recovery, even if such negligence has = deprived the patient of a chance of avoiding the harm.

Id. at 400 (citations=20 omitted).  In Kramer, the harm for which the = plaintiffs sought=20 to recover damages was the decedent=3Ds Alost chance of=20 survival.@  Id. at = 403. =20 The plaintiffs pleaded and requested jury instructions based on an = alleged=20 legal injury of loss of chance of survival, and the Texas Supreme = Court=20 held that Texas does not recognize loss of chance of survival as a = legal=20 injury.  Id. at 405-407. 

The Texas Supreme = Court did not=20 hold, however, that once a person is diagnosed with a terminal = illness,=20 they no longer enjoy the protections of Texas tort law as to harms = that=20 they may suffer other than the ultimate harm, such as death and = loss of=20 chance of survival.  The limitation on Kramer has been = recognized by this court and by the Court of Appeals in = Beaumont. =20 See Hodgkins v. Bryan, 99 S.W.3d 669, 675 (Tex. = App.BHouston [14th Dist.] = 2003, no=20 pet.); Parrott v. Caskey, 873 S.W.2d 142, 150 (Tex.=20 App.BBeaumont 1994, no = writ).=20

Although this court = recognized=20 the limitation on Kramer in the Hodgkins decision, = this=20 court affirmed the trial court=3Ds summary judgment = because the=20 plaintiffs in Hodgkins did not allege any pre-death = injuries other=20 than a loss of chance of survival.  Hodgkins, 99 = S.W.3d at=20 675.  This case is distinguishable from Hodgkins, = since Rowan=20 and Niese alleged pre-death injuries other than loss of chance of=20 survival.  In her petition, Rowan alleged that the defendants = negligently failed to diagnose her recurrence of cancer in = September 2002=20 and May 2003 and that this negligence caused Rowan to undergo = medical=20 procedures and pay medical expenses that would have been = unnecessary if=20 defendants had not negligently failed to diagnose the recurrence = of her=20 cancer.  Specifically, Rowan has sued for her enduring = Aotherwise unnecessary = and=20 additional medical procedures, otherwise unnecessary and = additional=20 medical expenses, loss of job and associated benefits... physical = pain and=20 suffering, loss of consortium, mental anguish, emotional stress... = and=20 loss of enjoyment of life.@  Her husband = sued to=20 recover for Aloss of consortium, = mental=20 anguish, [and] pecuniary loss@ during his = wife=3Ds life, not as a = result of her=20 death or her lost chance of survival.   Recovery for = these=20 damages is not prevented by Texas=3Ds bar of recovery for = lost=20 chance of survival, which was the only ground asserted in=20 defendants=3D motion.

The = doctors=3D five-page = traditional motion=20 for summary judgment states as its sole ground that Ait is clear that=20 Plaintiffs=3D cause of action = against these=20 Doctors arises out of what Plaintiffs perceive to be a delay in = diagnosis=20 of cancer recurrence which allegedly cost Donita Rowan a lost = chance of=20 cure or survival... Plaintiffs are precluded from recovery because = Texas=20 does not permit lawsuits on a >loss of = chance=3D = doctrine.@  This ground is = based on=20 a false premise because plaintiffs are not effectively seeking = recovery=20 for an alleged loss of chance of cure or survival.  = Accordingly, the=20 trial court erred in granting summary judgment.  We sustain = Rowan and=20 Neise=3Ds second = issue.

IV.  Motion to=20 Dismiss

A. =20 Jurisdiction      =20

The defendant doctors = filed a=20 motion to dismiss pursuant to Section 101.106(f), which can=20

provide a = governmental employee=20 with personal immunity if a lawsuit is filed against a = governmental=20 employee based on conduct within the general scope of the=20 employee=3Ds employment.  = Tex. Civ.=20 Prac. & Rem. Code ' 101.106(f).  = After the=20 trial court denied the motion to dismiss, the doctors filed an=20 interlocutory appeal.  Rowan and Niese complain that we lack=20 jurisdiction of this appeal.

This court has held = that we=20 have jurisdiction to consider an interlocutory appeal based on the = trial=20 court=3Ds denial of a motion = to dismiss=20 pursuant to section 101.106(f).  See Phillips v. Dafonte, = 187=20 S.W.3d 669, 672-74 (Tex. App.BHouston[14th Dist.] = 2006, no=20 pet.).  In Phillips, this court held that section = 101.106 is=20 an immunity statute, and therefore the doctors could appeal the = denial of=20 the motion to dismiss under section 51.014(a)(5), which authorizes = an=20 appeal from an interlocutory order of a trial court denying = Aa motion for summary = judgment=20 that is based on an assertion of immunity by an ... employee of = the State=20 or a political subdivision of the State.@  Id. = (citing Tex.=20 Civ. Prac. & Rem. Code ' 51.014(a)(5)).  = This=20 court reasoned that although we must

strictly construe statutes allegedly = authorizing=20 interlocutory appeals, and we may not expand our jurisdiction = beyond that=20 conferred by the legislature... the legislature did not intend to = limit=20 the application of section 51.014(a)(5) to a specific procedural = vehicle;=20 rather, the legislature was most interested in the substance or = topic of=20 the motion -i.e., that it declare the employee=3Ds immunity because of his employment by = the State=20 and that it attack the court=3Ds jurisdiction to hear the = case.

Id. at 674.  By = alleging=20 immunity as employees of the State, the doctors in Phillips=20 entitled themselves to an interlocutory appeal, even though = they may=20 have used the Awrong@ procedural vehicle = to raise=20 the immunity defense.  Id. at 675.  The same = reasoning=20 applies in the present case to give this court jurisdiction over = this=20 appeal of the trial court=3Ds denial of the = motion to=20 dismiss.

B. =20 Analysis

Section 101.106(f)=20 provides:

If a suit is filed against an employee = of a=20 governmental unit based on conduct within the general scope of = that=20 employee=3Ds employment and if it could have been = brought=20 under this chapter against the governmental unit, the suit is = considered=20 to be against the employee in the employee=3Ds official capacity only.  On the=20 employee=3Ds motion, the suit against the employee = shall be=20 dismissed unless the plaintiff files amended pleadings dismissing = the=20 employee and naming the governmental unit as defendant on or = before the=20 30th day after the date the motion is filed.

Id.  = Thus, to be entitled = to=20 dismissal under section 101.106(f), a defendant must show that 1) = the=20 plaintiff=3Ds suit was based on = conduct=20 within the general scope of defendant=3Ds employment with a=20 governmental unit, and 2) the suit could have been brought under = the Texas=20 Tort Claims Act against the governmental unit.  Id.; = Phillips,=20 187 S.W.3d at 675.  As to the second prong of 101.106(f), = the=20 Texas Tort Claims Act waives sovereign immunity in three areas: = (1) injury=20 caused by an employee=3Ds use of a = motor-driven=20 vehicle; (2) injury caused by a condition or use of tangible = personal or=20 real property; and (3) injury caused by a premise defect.  = Tex. Civ.=20 Prac. & Rem. Code Ann. '' 101.021-.022 (Vernon = 2005);=20 Hall, 232 S.W.3d at 928.  On appeal, the doctors = assert Rowan=20 and Niese=3Ds injuries were = caused by the=20 use or misuse of tangible personal property, and therefore=20 plaintiffs=3D suit could have been = brought=20 against M. D. Anderson under the Texas Tort Claims Act.  =

The doctors had the = burden to=20 show the trial court that the suit could have been brought under = the Texas=20 Tort Claims Act against M. D. Anderson.  See Hall v. = Provost,=20 232 S.W.3d 926, 929 (Tex. App.BDallas 2007, no pet. = h.);=20 Franka v. Velasquez, 216 S.W.3d 409, 413 (Tex. = App.BSan Antonio 2006, no = pet.);=20 Phillips, 187 S.W.3d at 676-77.  Because the doctors = failed to=20 present the trial court with a sufficient record to satisfy their = burden,=20 they were not entitled to a dismissal on their motion. =20

The status of the = pleadings at=20 the time of the ruling is relevant to our analysis.  At the = time the=20 doctors filed their motion to dismiss, and when the trial court = ruled on=20 it, Rowan and Niese=3Ds live pleading was = their=20 original petition.[7]  We=20 note that in their brief on appeal, the doctors make arguments = relying on=20 Rowan and Niese=3Ds answers to = interrogatories=20 filed in August 2005; however, we are unable to consider such = answers=20 because they were not filed until after the trial court denied the = motion=20 to dismiss on July 19, 2005.[8]

In their original = petition,=20 Rowan and Niese named four distinct defendants, the four doctors = in this=20 case.  As to each doctor, Rowan and Niese alleged the = following acts=20 or omissions constituted negligence:

a.  failure to = properly=20 diagnose Rowan=3Ds medical = condition;

b.  failure to = properly=20 treat Rowan=3Ds medical = condition;

c.  failure to = timely and=20 appropriately recommend further diagnostic testing; and

d.  failure to = properly=20 and timely recommend further treatment.

None of these alleged = acts or=20 omissions obviously involve a condition or use of tangible = property. =20 The only reference in the original petition to what could arguably = be a=20 Ause of tangible = personal=20 property@ is = plaintiffs=3D allegation that = Aone or more of the=20 defendants@ reviewed bone scans = and=20 misinterpreted them.[9]  It=20 is impossible to tell from the original petition which of the = defendant=20 doctors may have reviewed the bone scans.

The doctors jointly = filed a=20 motion to dismiss seeking a dismissal of the suit as to all four = doctors=20 for the same reasons.  There is no discussion in the motion = about how=20 a suit against M. D. Anderson could have been brought under the = Tort=20 Claims Act.  The motion simply contains the conclusory = statement,=20 Athis is a case which = could have=20 been brought against the governmental unit, i.e., M. D.=20 Anderson.@  In support of = the motion=20 to dismiss, affidavits were filed by each doctor merely stating = dates of=20 employment by M. D. Anderson Cancer Center.  The affidavits = make no=20 mention of Rowan and Niese=3Ds negligence = allegations. =20 There was absolutely no showing before the trial court, as to any=20 particular defendant, that the claims against that defendant could = be=20 brought against M. D. Anderson  under the Texas Tort Claims = Act.[10] =20 See Hall, 232 S.W.3d at 928 (holding that general medical=20 malpractice claims are not encompassed by the Texas Tort Claims=20 Act=3Ds limited waiver of = sovereign=20 immunity); see also Williams v. Nealon, 199 S.W.3d 462, 464 = (Tex.=20 App.BHouston[14th Dist.] = 2006, no=20 pet.); Phillips, 187 S.W.3d at 676. 

The trial court did = not err in=20 denying the motion to dismiss.  Accordingly, we overrule the=20 defendant doctors=3D sole issue in the=20 interlocutory appeal.

V. =20 Conclusion

We affirm the denial of the motion to = dismiss in=20 cause number 14-05-00828-CV.  We reverse the summary judgment = and=20 remand the case to the trial court in cause number=20 14-06-00197-CV.

 

 

/s/     =20 Margaret Garner Mirabal

Senior Justice*

 

 

Judgment=20 rendered and Majority and Dissenting Opinions filed November 22,=20 2007.

Panel=20 consists of Justices Frost and Mirabal (J. Anderson,=20 dissenting).


[1]  Donita Rowan and James Niese are = husband=20 and wife. Rowan and Niese appeared pro se in the trial court; = however,=20 they retained counsel for both appeals.

[2]  Section 101.106(f) = provides:

 

(f)        If a=20 suit is filed against an employee of a governmental unit based on = conduct=20 within the general scope of that employee=3Ds employment and if it could have been = brought=20 under this chapter against the governmental unit, the suit is = considered=20 to be against the employee in the employee=3Ds official capacity only.  On the=20 employee=3Ds motion, the suit against the employee = shall be=20 dismissed unless the plaintiff files amended pleadings dismissing = the=20 employee and naming the governmental unit as defendant on or = before the=20 30th day after the date the motion is filed.

 

Tex. Civ. Prac. & Rem. Code Ann. = ' 101.106(f) (Vernon 2005). =

[3]  Section 51.014(a)(5) = provides:

 

(a)        A=20 person may appeal from an interlocutory order of a district court, = county=20 court at law, or county court that:

 

* * *

(5)       =20 denies a motion for summary judgment that is based on an assertion = of=20 immunity by an individual who is an officer or employee of the = state or a=20 political subdivision of the state[.]

 

Tex. Civ. Prac. & Rem. Code Ann. = ' 51.014(a)(5) (Vernon Supp.=20 2006).

[4]  Section 51.014(b) = provides:

 

(b)        An=20 interlocutory appeal under Subsection (a), other than an appeal = under=20 Subsection (a)(4), stays the commencement of a trial in the trial = court=20 pending resolution of the appeal.  An interlocutory appeal = under=20 Subsection (a)(3), (5), or (8) also stays all other proceedings in = the=20 trial court pending resolution of that appeal.

 

Tex. Civ. Prac. & Rem. Code Ann. = ' 51.014(b).

[5]  Rowan and Niese raised the issue = of the=20 statutory stay for the first time in their motion for new = trial. =20 They do not raise any issue contending the trial court erred in = denying=20 their motion for new trial.

[6]  While it is an unpublished = opinion with no=20 precedential value, we have addressed this issue before in = Siebenmorgan v. The = Hertz=20 Corp., No.=20 14-97-01012-CV, 1999 WL 21299, at *3 (Tex. App.CHouston [14th = Dist.] 1999, no=20 pet.) (not designated for publication).  In = Siebenmorgan we=20 held that if a plaintiff fails to inform the trial court of = section=20 51.014(b) and allows the court to proceed to trial, the plaintiff = waives=20 the right to object or request any relief on appeal. =20 Siebenmorgan, 1999 WL 21299, at *3.

[7]  After the trial court overruled = the motion=20 to dismiss on July 19, 2005, plaintiffs filed an amended petition = on=20 November 7, 2005. 

[8]  After an appeal had been filed = regarding=20 the July 19, 2005 order, the doctors filed an amended motion to = dismiss on=20 September 26, 2005, but the trial court did not rule on it.  = The=20 subject of this appeal is the July 19, 2005 order denying=20 doctors=3D motion to dismiss.

[9]  See Texas Tech Univ. Health = Sciences=20 Center v. Lucero, 234 S.W.3d 158 (Tex. App.BEl Paso, 2007, no = pet.).

[10]  The trial court=3Ds order denying the doctors=3D motion to dismiss specifically states:=20 AThe court finds there is no evidence = that this=20 action >could have been brought under = ['101.106(f)] against [M. D. = Anderson].=3D@

*  Senior Justice Margaret Garner = Mirabal=20 sitting by=20 assignment.

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