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Opinion issued = August 3,=20 2007












In=20 The

Court of Appeals

For The

First District of Texas




NO.=20 01-06-00569-CV




GEOFFREY=20 KLEIN 3DFootnote AND BAYLOR COLLEGE OF MEDICINE,=20 Appellants


V.


CYNTHIA HERNANDEZ, AS NEXT FRIEND OF = NAHOMY=20 HERNANDEZ, A MINOR, Appellee 3DFootnote




On Appeal from the 152nd District=20 Court

Harris County, = Texas

Trial Court Cause No.=20 2003-49449




O P I N I O N

          = Appellants,=20 Baylor College of Medicine (=E2=80=9CBaylor=E2=80=9D) and Geoffrey = Klein (together,=20 =E2=80=9Cappellants=E2=80=9D), appeal the trial court=E2=80=99s = two interlocutory orders denying=20 their joint motions for summary judgment and their joint pleas to = the=20 jurisdiction. We determine (1) whether we have jurisdiction over = Baylor=E2=80=99s=20 appeal in whole or in part; (2) assuming that the answer to (1) is = in the=20 affirmative, whether Baylor=E2=80=99s summary-judgment motions had = become moot=20 before the trial court denied them; (3) whether we have = jurisdiction over=20 Klein=E2=80=99s appeal in whole or in part; and (4) assuming that = the answer to=20 (3) is in the affirmative, whether the trial court erred by = denying=20 summary judgment for Klein on the basis of immunity from liability = under=20 Texas Health and Safety Code sections 312.006 or = 312.007. 3DFootnote We rule as=20 follows:

=E2=97=8Fwe = dismiss Baylor=E2=80=99s appeal=20 of the order denying its jurisdictional pleas;

 

=E2=97=8Fwe vacate = that portion of=20 the trial court=E2=80=99s separate summary-judgment order that = denied Baylor=E2=80=99s=20 summary-judgment motions;

 

=E2=97=8Fwe = dismiss Klein=E2=80=99s appeal=20 from the order denying his jurisdictional pleas and from the order = denying=20 his summary-judgment motions to the extent that those motions = asserted=20 what Klein alleged to have been jurisdictional grounds; and=20

 

=E2=97=8Fwe affirm = the order denying=20 summary judgment to the extent that the order denied that part of = Klein=E2=80=99s=20 summary-judgment motions that asserted individual immunity from = liability.=20


Background

          = Baylor=20 was a non-profit medical school. At the time of the events = underlying this=20 lawsuit, Baylor was under contract with the Texas Higher Education = Coordinating Board to provide medical training to physicians who = provided=20 medical care and services at public-health-care facilities. At the = times=20 relevant to this suit, Klein was a resident physician in = Baylor=E2=80=99s=20 Obstetrics and Gynecology residency program and was assigned to = provide=20 medical services to patients at Ben Taub General Hospital = (=E2=80=9CBen Taub=E2=80=9D),=20 which was owned and operated by the Harris County Hospital=20 District.

          = In=20 June 1994, Cynthia, who was pregnant, was admitted to Ben Taub for = the=20 delivery of her daughter, Nahomy. Klein delivered Nahomy. During = the=20 delivery, Nahomy experienced a shoulder dystocia. 3DFootnote Hernandez claimed = that=20 Klein=E2=80=99s methods of releasing the shoulder dystocia and = delivering Nahomy=20 led to the injury of Nahomy=E2=80=99s right arm.

          = Hernandez=20 sued Baylor and Klein, alleging a health-care-liability claim = against=20 Klein, individually, and against Baylor, through respondeat = superior for=20 the acts of Klein and other unnamed Baylor = employees. 3DFootnote Appellants jointly = filed a=20 traditional motion for summary judgment and four supplements to = it,=20 asserting that Baylor and Klein were entitled to immunity from = suit and=20 liability under Texas Health and Safety Code sections 312.006 and = 312.007.=20 Appellants also jointly filed a motion to dismiss for lack of = jurisdiction=20 and four supplements to it, which we construe as pleas to the=20 jurisdiction, 3DFootnote in which they = asserted the=20 same grounds as they had in the summary-judgment motions. After = appellants=20 had filed several of their supplemental motions for summary = judgment and=20 jurisdictional pleas, but before the trial court=E2=80=99s ruling = on any motion or=20 plea, Hernandez filed a notice of non-suit of Baylor. The trial = court=20 entered an order of non-suit as to Baylor before it ruled on = appellants=E2=80=99=20 joint motions and pleas. 3DFootnote

          = At=20 the hearing on appellants=E2=80=99 dispositive motions and pleas, = the trial court=20 stated that it would not rule on the original and supplemental = motions for=20 summary judgment or jurisdictional pleas to the extent that they = were=20 asserted by Baylor because Baylor had been non-suited and was no = longer=20 before the trial court. Nonetheless, the orders that the trial = court=20 signed recited that the court denied both Klein=E2=80=99s and = Baylor=E2=80=99s original=20 and supplemental motions for summary judgment and jurisdictional = pleas.=20 Hernandez then moved the trial court to correct its orders to = reflect that=20 the court did not rule on Baylor=E2=80=99s original and = supplemental=20 summary-judgment motions and jurisdictional pleas because Baylor = had been=20 non-suited before those orders were rendered. Nothing shows that = the trial=20 court has ruled on Hernandez=E2=80=99s motion to = correct.

 

 

Standard of = Review

          = =E2=80=9CA=20 plea to the jurisdiction is a dilatory plea, the purpose of which = is to=20 defeat a cause of action without regard to whether the claims = asserted=20 have merit.=E2=80=9D Bland Indep. Sch. Dist. v. Blue, 34 = S.W.3d 547, 554=20 (Tex. 2000). =E2=80=9C[A] court deciding a plea to the = jurisdiction is not=20 required to look solely to the [plaintiff=E2=80=99s] pleadings but = may consider=20 evidence and must do so when necessary to resolve the = jurisdictional=20 issues raised.=E2=80=9D Id. at 555. We review de = novo a trial=20 court=E2=80=99s ruling on a jurisdictional plea, construing the = pleadings in the=20 plaintiff=E2=80=99s favor and looking to the pleader=E2=80=99s = intent. See Tex. Natural=20 Res. Conservation Comm=E2=80=99n v. IT-Davy, 74 S.W.3d 849, = 855 (Tex. 2002);=20 Tex. Ass=E2=80=99n of Bus. v. Tex. Air Control Bd., 852 = S.W.2d 440, 446=20 (Tex. 1993).

          = Summary=20 judgment under rule 166a(c) is proper only when a movant = establishes that=20 there is no genuine issue of material fact and that it is entitled = to=20 judgment as a matter of law. See Tex. R. Civ. P. 166a(c); = Randall=E2=80=99s Food Mkts., Inc. v. Johnson, 891 S.W.2d = 640, 644 (Tex.=20 1995). A defendant is entitled to summary judgment if the evidence = disproves as a matter of law at least one element of each of the=20 plaintiff's causes of action or if it conclusively establishes all = elements of an affirmative defense. Johnson, 891 S.W.2d at=20 644.

Chapter 312

          = Because=20 virtually all of the parties=E2=80=99 arguments concern Texas = Health and Safety=20 Code chapter 312, we briefly discuss that chapter before reaching = the=20 issues.

          = Texas=20 Health and Safety Code chapter 312 concerns medical and dental = clinical=20 education in public hospitals. See Tex. Health & Safety Code = Ann.=20 =C2=A7=C2=A7 312.001=E2=80=93.007 (Vernon 2001). The = chapter=E2=80=99s purpose is =E2=80=9Cto authorize=20 coordination and cooperation between medical and dental units, = supported=20 medical or dental schools, and public hospitals and to remove = impediments=20 to that coordination and cooperation in order to: (1) enhance the=20 education of students, interns, residents, and fellows attending a = medical=20 and dental unit or a supported medical or dental school; (2) = enhance=20 patient care; and (3) avoid any waste of public money.=E2=80=9D = Id.=20 =C2=A7 312.001. Baylor proved through summary-judgment = evidence that it=20 fell within the definition of a =E2=80=9Csupported medical = school=E2=80=9D under chapter=20 312. See id. =C2=A7 312.002(6) = (=E2=80=9C=E2=80=98Supported medical . . .=20 school=E2=80=99 means a medical school . . . school = organized as a=20 nonprofit corporation that is under contract with the Texas Higher = Education Coordinating Board to provide educational services under = Subchapter D, Chapter 61, Education Code.=E2=80=9D). =

          = The=20 parties dispute the effect and application of two provisions of = chapter=20 312. Their arguments first concern section = 312.006:

=C2=A7 312.006.Limitation on=20 Liability

(a)A = . . .=20 supported medical . . . school . . . engaged = in=20 coordinated or cooperative medical . . . clinical = education=20 under Section 312.004, including patient care and the provision or = performance of health or dental services or research at a public = hospital,=20 is not liable for its acts and omissions in connection with = those=20 activities except to the extent and up to the maximum amount of = liability of state government under Section 101.023(a), Civil = Practice=20 and Remedies Code,[ 3DFootnote ] for the acts and = omissions=20 of a governmental unit of state government under Chapter 101, = Civil=20 Practice and Remedies Code.

(b)The = limitation on=20 liability provided by this section applies regardless = of=20 whether the . . . supported medical . . . = school=20 . . . is a =E2=80=9Cgovernmental unit=E2=80=9D as = defined by Section=20 101.001, Civil Practice and Remedies Code.


Id. = =C2=A7 312.006=20 (emphasis added). Appellants presented summary-judgment evidence = that=20 Baylor was a supported medical school engaged in the type of = medical=20 clinical education required for Baylor to invoke section 312.006.=20

          = Second,=20 the parties dispute the effect and application of section=20 312.007:

=C2=A7 312.007.Individual=20 Liability

 

(a)A = . . .=20 supported medical . . . school . . . is a = state=20 agency, and a director, trustee, officer, intern, resident, = fellow,=20 faculty member, or other associated health care professional or = employee=20 of a . . . supported medical . . . school=20 . . . is an employee of a state agency for purposes = of=20 Chapter 104, Civil Practice and Remedies Code,[ = 3DFootnote ] and for = purposes of=20 determining the liability, if any, of the person for the = person=E2=80=99s acts=20 or omissions while engaged in the coordinated or cooperative = activities of=20 the . . . school . . . .

 

(b)A judgment = in an=20 action or settlement of a claim against a . . . = supported=20 medical . . . school . . . under Chapter = 101,=20 Civil Practice and Remedies Code,[ 3DFootnote ] bars any action = involving=20 the same subject matter by the claimant against a director, = trustee,=20 officer, intern, resident, fellow, faculty member, or other = associated=20 health care professional or employee of the . . . school = . . . whose act or omission gave rise to the claim as = if the=20 person were an employee of a governmental unit against which = the claim=20 was asserted as provided under Section 101.106, Civil Practice and = Remedies Code.


Id. = =C2=A7 312.007=20 (emphasis added).

Baylor=E2=80=99s = Appeal

          = In=20 two issues, Baylor argues that the trial court erred in denying = its=20 jurisdictional pleas and summary-judgment motions. Specifically, = Baylor=20 argues that (1) Texas Health and Safety Code section 312.006 = confers=20 governmental immunity from suit and liability on Baylor by its = alleged=20 invocation of all provisions of the Texas Tort Claims Act=20 (=E2=80=9CTTCA=E2=80=9D), 3DFootnote which Baylor = alleges has the=20 primary purpose of =E2=80=9Cprovid[ing] immunity from suit to = government/state=20 units or their equivalent=E2=80=9D; (2) Hernandez failed to invoke = the TTCA=E2=80=99s=20 waiver of governmental immunity from suit because her petition did = not=20 sufficiently allege the type of negligence for which the TTCA = waives such=20 immunity; (3) alternatively, Baylor=E2=80=99s governmental = immunity from suit was=20 not waived under the TTCA because Klein enjoyed immunity from = individual=20 liability for the negligence for which Hernandez had alleged that = Baylor=20 was vicariously liable; and (4) Hernandez failed to provide the = notice=20 that the TTCA makes a jurisdictional prerequisite to=20 suit.

          = Hernandez=20 argues that we lack jurisdiction over Baylor=E2=80=99s appeal = because she had=20 non-suited Baylor before the trial court=E2=80=99s complained-of = rulings and=20 because Baylor is not a governmental unit for purposes of the=20 interlocutory-appeal statute. Baylor responds that it should be = treated as=20 a governmental unit for purposes of interlocutory appeal and that = the=20 trial court lacked the power to order that Baylor be non-suited=20 because

1.=E2=80=9Cfrom = the very moment this=20 lawsuit was filed, the trial court lacked subject-matter = jurisdiction=E2=80=9D=20 because Hernandez did not invoke the TTCA=E2=80=99s waiver of = immunity from suit,=20 every provision of which chapter 312 of the Health and Safety Code = allegedly incorporated by reference and applied to private = entities like=20 Baylor;

 

2.=E2=80=9CChapter = 312 and the=20 immunity it provides to=E2=80=9D Baylor trump the Texas Rules of = Civil Procedure=20 allowing non-suits;

 

3.a non-suit of = Baylor =E2=80=9Cdoes=20 not place the parties where they were before this lawsuit was = filed=E2=80=9D=20 because =E2=80=9CKlein may be deprived of the benefit of = protections of Chapter=20 312, and . . . Baylor may be deprived of the ability to = protect=20 its employees=E2=80=9D;

 

4.the non-suit = =E2=80=9Cgives the=20 false impression that claims against Appellant Baylor no longer = exist,=E2=80=9D=20 when a suit against Klein in his official capacity is in reality a = suit=20 against Baylor;

 

5.=E2=80=9CImmunity granted under=20 Chapter 312 and the right to seek dismissal of claims is in the = nature of=20 affirmative relief for . . . Baylor and its=20 employees=E2=80=9D;

 

6.by non-suiting = Baylor,=20 Hernandez was =E2=80=9Cretroactively creat[ing] subject matter = jurisdiction=20 . . . to defeat a plea to the jurisdiction=E2=80=9D and = was =E2=80=9Cattempting=20 to create jurisdiction where none existed=E2=80=9D; = and

 

7.holding that the = trial=20 court had the power to non-suit Baylor in this suit would = =E2=80=9Cnullify the=20 intent and actions of the Legislature and [in effect] constitute = judicial=20 legislation repealing Chapter 312.=E2=80=9D

Baylor further = asserts that=20 two provisions of the interlocutory-appeal statute=E2=80=94Texas = Civil Practice=20 and Remedies Code section 51.014(a) 3DFootnote =E2=80=94authorize its=20 appeal:

=E2=97=8FBaylor = argues that section=20 51.014(a)(8) allows it to appeal the denial of its jurisdictional = pleas=20 and of its summary-judgment motions to the extent those motions = asserted=20 governmental immunity from suit.

 

=E2=97=8FBaylor = argues that section=20 51.014(a)(5) allows it to appeal the denial of its = summary-judgment=20 motions to the extent that those motions asserted Klein=E2=80=99s = immunity from=20 liability.


We begin by = considering our=20 jurisdiction over Baylor=E2=80=99s appeal.

 

A.      Whether=20 Texas Civil Practice and Remedies Code Section 51.014(a)(8) = Authorizes=20 Baylor=E2=80=99s Appeal


          = Our=20 sister court of appeals=E2=80=94in a case involving many of the = same issues raised=20 here and in which Baylor was also an appellant=E2=80=94recently = considered whether=20 it had jurisdiction under section 51.014(a)(8) to consider = Baylor=E2=80=99s appeal=20 in a lawsuit alleging a similar health-care-liability claim. = See Young=20 v. Villegas, No. 14-06-00072-CV, 2007 WL 967108, at = *3=E2=80=934 (Tex.=20 App.=E2=80=94Houston [14th Dist.] Apr. 3, 2007, no pet. = h.).

          = The=20 Young court held that no appellate jurisdiction lay over = Baylor=E2=80=99s=20 appeal under Texas Civil Practice and Remedies Code section = 51.014(a)(8),=20 which provides for the interlocutory appeal of an order that = =E2=80=9Cgrants or=20 denies a plea to the jurisdiction by a governmental unit,=E2=80=9D = but for reasons=20 that do not apply here. Tex. Civ.=20 Prac. & Rem. Code Ann. =C2=A7 51.014(a)(8) (Vernon = 1997). In=20 Young, the plaintiffs sued Baylor and the doctor who had = delivered=20 their son at Ben Taub for the doctor=E2=80=99s negligence that had = allegedly=20 occurred during the delivery. Young, 2007 WL 967108, at *1. = As in=20 the instant case, Baylor and the doctor filed joint motions for = summary=20 judgment and to dismiss the appeal for lack of subject-matter=20 jurisdiction, arguing that Texas Health and Safety Code chapter = 312=20 conferred immunity from suit and liability upon them. Id. = at *1.=20 Also as in the instant case, the plaintiffs had non-suited Baylor = before=20 the trial court ruled on the plaintiff=E2=80=99s dispositive = motions. Id.=20 And finally, as in this case, the trial court in Young = denied the=20 doctor=E2=80=99s summary-judgment motions and jurisdictional = pleas. Id.=20 Unlike in this case, however, the trial court did not enter an = order=20 ruling on Baylor=E2=80=99s summary-judgment motions and = jurisdictional pleas.=20 Id.

          = The=20 Young court first held that Baylor had no right to appeal = under=20 section 51.014(a)(8) because the trial court=E2=80=99s not ruling = on Baylor=E2=80=99s=20 pleas (and its summary-judgment motions, to the extent that they = were=20 based on governmental immunity from suit 3DFootnote ) was not an order = =E2=80=9Cden[ying] a plea to the jurisdiction=E2=80=9D under that = section. Id. at=20 *3=E2=80=934. In dictum, the Young court then explained = that, upon the=20 plaintiffs=E2=80=99 having non-suited Baylor, Baylor was = =E2=80=9Cno longer a party to the=20 case,=E2=80=9D rendering Baylor=E2=80=99s pleas and motions moot. = Id. at 4. In that=20 same dictum, the Young court then rejected the first five = arguments=20 that Baylor makes for the existence of appellate jurisdiction over = the=20 denial of Baylor=E2=80=99s jurisdictional pleas (and its = summary-judgment motions,=20 to the extent that they raised immunity from suit).=20 Id.

          = The=20 only material difference between this case and that in = Young is=20 that the trial court in the instant case mistakenly entered orders = denying=20 Baylor=E2=80=99s summary-judgment motions and jurisdictional pleas = after Baylor=20 had been non-suited, rather than declining to rule on them. This=20 distinction is important because the basis for the Young = court=E2=80=99s=20 holding that it lacked jurisdiction over Baylor=E2=80=99s appeal = was that a=20 refusal to rule on a jurisdictional plea is not the equivalent, = under the=20 interlocutory-appeal statute, of an order denying a jurisdictional = plea.=20 See Young, 2007 WL 967108, at *3=E2=80=934; cf. In re = MHI P=E2=80=99ship,=20 Ltd., 7 S.W.3d 918, 920 (Tex. App.=E2=80=94Houston [1st Dist.] = 1999, orig.=20 proceeding) (holding that trial court=E2=80=99s decision to = defer ruling on=20 motion to compel arbitration was, for purposes of determining = statutory=20 right to interlocutory appeal, neither order denying motion to = compel=20 arbitration nor order grating stay of arbitration). Here, in = contrast, the=20 trial court expressly denied Baylor=E2=80=99s jurisdictional pleas = and=20 summary-judgment motions, unlike the trial court in Young.=20 See Tex. Civ. = Prac. &=20 Rem. Code Ann. =C2=A7 51.014(a)(8) (providing for = interlocutory=20 appeal of order that =E2=80=9Cgrants or denies a plea to the = jurisdiction by a=20 governmental unit=E2=80=9D). Thus, we turn to the question of = whether Baylor is a=20 =E2=80=9Cgovernmental unit=E2=80=9D within the meaning of section = 51.014(a)(8) of the=20 interlocutory-appeal statute=E2=80=94a matter that the = Young court did not=20 need to reach.

          = The=20 interlocutory-appeal statute provides that appeal is allowed from = an order=20 that =E2=80=9Cgrants or denies a plea to the jurisdiction by a = governmental unit=20 as that term is defined in [TTCA] Section 101.001=20 . . . .=E2=80=9D Id. (emphasis added). = TTCA section=20 101.001 defines =E2=80=9Cgovernmental unit=E2=80=9D as =

(A)this state and = all the=20 several agencies of government that collectively constitute the = government=20 of this state, including other agencies bearing different = designations,=20 and all departments, bureaus, boards, commissions, offices, = agencies,=20 councils, and courts;

 

(B)a political = subdivision=20 of this state, including any city, county, school district, junior = college=20 district, levee improvement district, drainage district, = irrigation=20 district, water improvement district, water control and = improvement=20 district, water control and preservation district, freshwater = supply=20 district, navigation district, conservation and reclamation = district, soil=20 conservation district, communication district, public health = district, and=20 river authority;

 

(C)an emergency = service=20 organization; and

 

(D)any other = institution,=20 agency, or organ of government the status and authority of which = are=20 derived from the Constitution of Texas or from laws passed by the=20 legislature under the constitution.


Id. = =C2=A7 101.001(3)=20 (Vernon 2005) (emphasis added). Baylor is a private teaching = hospital, not=20 an =E2=80=9Cinstitution, agency, or organ of government=E2=80=9D = or any like kind of=20 entity.

          = Baylor=20 does not argue that it is actually a governmental unit. Rather, liberally = construing=20 Baylor=E2=80=99s arguments, 3DFootnote we understand = Baylor to=20 argue that the following italicized language from sections = 312.006(a) and=20 312.007(a) renders it the equivalent of a governmental unit for = purposes=20 of, among other things, invoking the interlocutory-appeal=20 statute:

=C2=A7 312.006. Limitation on=20 Liability

A . . . = supported=20 medical . . . school . . . is not liable = for=20 its acts and omissions in connection with those activities = except to=20 the extent and up to the maximum amount of liability of state=20 government under Section 101.023(a), Civil Practice and = Remedies=20 Code, for the acts and omissions of a governmental unit of = state=20 government under Chapter 101, Civil Practice and Remedies=20 Code.


Tex. Health & Safety Code = Ann.=20 =C2=A7 312.006(a) (emphasis added).

 

=C2=A7 312.007. Individual=20 Liability

 

A . . . = supported=20 medical . . . school . . . is a state = agency,=20 and a director, trustee, officer, intern, resident, fellow, = faculty=20 member, or other associated health care professional or employee = of a=20 . . . supported medical . . . school = . . .=20 is an employee of a state agency for purposes of Chapter = 104, Civil=20 Practice and Remedies Code, and for purposes of determining the = liability, if any, of the person for the person=E2=80=99s acts = or omissions=20 while engaged in the coordinated or cooperative activities of the = . .=20 . school . . . .


Tex. Health & Safety Code = Ann.=20 =C2=A7 312.007(a) (emphasis added).

          = We=20 disagree that these sections do what Baylor contends. The fact = that Health=20 and Safety Code sections 312.006 and 312.007=E2=80=94which apply = to supported=20 medical schools like Baylor=E2=80=94invoke a select number of=20 individual-liability, damages-cap, and indemnity provisions within = the=20 TTCA=E2=80=94which concerns suits against governmental = units=E2=80=94does not convert=20 Baylor into a governmental unit for all purposes. For example, = immunity from=20 suit is an attribute of governmental subdivisions of the=20 state, 3DFootnote yet section = 312.006 nowhere=20 references or implies governmental immunity from suit for private = schools=20 like Baylor. 3DFootnote See = Hernandez, 208=20 S.W.3d at 10=E2=80=9311 (concluding that section 312.006(a) does = not purport to=20 grant governmental immunity from suit to private supported medical = schools=20 like Baylor);=20 see also Tex. = Health &=20 Safety Code Ann. =C2=A7 312.006 (entitled=20 =E2=80=9CLimitation on Liability=E2=80=9D) (emphasis = added). Nor does the = section cloak=20 Baylor with governmental immunity from liability, another trait of = governmental units. See City of Galveston v. State, 217 = S.W.3d 466,=20 468 (Tex. 2007)=20 (=E2=80=9CWe take as our starting point the premise that in Texas = a governmental=20 unit is immune from tort liability unless the Legislature has = waived=20 immunity.=E2=80=9D). Rather, as our sister court of appeals has = held, section=20 312.006(a) merely imports a damages cap without extending = governmental=20 immunity from liability to supported medical schools like=20 Baylor. 3DFootnote See = Hernandez, 208=20 S.W.3d at 11.=20 Importation of a damages cap from one section of the TTCA is not = the same=20 as a blanket adoption of all the TTCA=E2=80=99s provisions, = including any implicit=20 recognition of Baylor as a governmental unit for purposes of = immunity from=20 liability.

          = Likewise,=20 the language in section 312.007(a) that a supported medical school = is a=20 =E2=80=9Cstate agency=E2=80=9D is expressly qualified by the = phrases, =E2=80=9Cfor=20 purposes of Chapter 104, Civil Practice and Remedies = Code,=20 and for purposes of determining the liability, if any, = of the=20 person for the person=E2=80=99s acts or omissions while = engaged in the=20 coordinated or cooperative activities of the . . . school . . = . .=E2=80=9D Tex. Health & Safety Code = Ann.=20 =C2=A7 312.007(a) (emphasis added). This qualification = limits the=20 situations in which Baylor may be treated as if it were a state = agency to=20 those involving indemnity of its employees and contractors = (chapter 104)=20 and determinations of its employees=E2=80=99 (or = directors=E2=80=99, trustees=E2=80=99, officers=E2=80=99,=20 interns=E2=80=99, residents=E2=80=99, fellows=E2=80=99, faculty = members=E2=80=99, or other associated=20 health care professionals=E2=80=99) immunity from individual = liability, when a=20 judgment is rendered against Baylor. See id. = =C2=A7 312.007(a),=20 (b).

          = In=20 sum, the language of sections 312.006(a) and 312.007(a) on which = we=20 understand Baylor to rely does not render Baylor a state agency = for all=20 purposes, including for the purpose of availing itself of the = ability to=20 appeal under section 51.014(a)(8) of the interlocutory-appeal = statute.=20 Nor = can chapter=20 312, by its incorporation of limited TTCA indemnity, damages-cap, = and=20 individual-liability provisions, be read to endow Baylor with a = blanket=20 governmental immunity from suit and liability, thereby implicitly=20 acknowledging that Baylor is a governmental unit for purposes of = the=20 interlocutory-appeal statute. Simply put, = nothing in=20 sections 312.006 or 312.007 cloaks Baylor with the status of a=20 governmental unit for purposes of the interlocutory-appeal = statute=E2=80=94either=20 expressly, through its terms, or implicitly, through the = conferring of=20 governmental immunity from suit or liability on = Baylor.

          = Indeed,=20 the language of sections 312.006 and 312.007 contemplates that not = all=20 supported medical schools will be governmental units. See = Tex. Health & Safety Code = Ann.=20 =C2=A7 312.006(b) (=E2=80=9CThe limitation on liability = provided by this section=20 applies regardless of whether the . . . supported = medical=20 . . . school . . . is a =E2=80=9Cgovernmental = unit=E2=80=9D as=20 defined by Section 101.001, Civil Practice and Remedies = Code=E2=80=9D) (emphasis=20 added); id. =C2=A7 312.007 (barring, under certain = circumstances,=20 =E2=80=9Cany action involving the same subject matter by the = claimant against a=20 director, trustee, officer, intern, resident, fellow, faculty = member, or=20 other associated health care professional or employee of the=20 . . . school . . . whose act or omission gave = rise to=20 the claim as if the person were an employee of a governmental = unit=20 . . . .=E2=80=9D) (emphasis = added).

          = For=20 these reasons, we hold that Texas Civil Practice and Remedies Code = section=20 51.014(a)(8) does not authorize Baylor=E2=80=99s interlocutory = appeal of the=20 denial of its jurisdictional pleas (and of its summary judgment = motions,=20 to the extent that they were based on immunity from suit). We thus = cannot=20 reach Baylor=E2=80=99s issue one. We grant Hernandez=E2=80=99s = motion to dismiss Baylor=E2=80=99s=20 appeal to the extent of this holding.

B.      Whether=20 Texas Civil Practice and Remedies Code Section 51.014(a)(5) = Authorizes=20 Baylor=E2=80=99s Appeal


          = Baylor=20 also asserts that it may appeal the denial of its summary-judgment = motions=E2=80=94to the extent that they were based on = Klein=E2=80=99s immunity from=20 individual liability=E2=80=94under section 51.014(a)(5) of the=20 interlocutory-appeal statute. See Tex. Civ. Prac. & Rem. Code = Ann. =C2=A7 51.014(a)(5) (Vernon 1997). That = section provides=20 that =E2=80=9C[a] person may appeal from an interlocutory = order=E2=80=9D that=20 =E2=80=9Cdenies 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 . . . .=E2=80=9D = Id.=20 (emphasis added).

          = The=20 Young court held that it lacked jurisdiction to consider a = similar=20 appeal of Baylor=E2=80=99s under section = 51.014(a)(5):

While [section = 51.014(a)(5)]=20 does not expressly state that the motion or plea denied by the = trial=20 court=E2=80=99s order must have been asserted by the person who = takes the=20 interlocutory appeal, principles of standing generally require = this to be=20 so. . . . Therefore, for Baylor to invoke subsection = (5), Baylor=20 must be an individual officer or employee of the state or a = political=20 subdivision of the state. Baylor does not claim to be such an = individual,=20 and Baylor does not argue that it should be so treated under any = statute.=20 Because Baylor falls outside of this statutory category, we reject = Baylor=E2=80=99s assertion that, based on subsection (5), this = court has appellate=20 jurisdiction over Baylor=E2=80=99s appeal.


Young, 2007 = WL=20 967108, at *3 (citations omitted).

          = We=20 respectfully disagree with this reasoning of the Young = court. The=20 interlocutory-appeal statute provides that a = =E2=80=9Cperson=E2=80=9D may appeal from an=20 order that =E2=80=9Cis based on an assertion of immunity by an = individual.=E2=80=9D See=20 Tex. Civ. Prac. & = Rem. Code=20 Ann. =C2=A7 51.014(a)(5). = =E2=80=9CPerson=E2=80=9D is not defined in section=20 51.014. However, the Legislature evidently meant for the term to = mean=20 something other than just the person who asserted immunity from = liability=20 by summary-judgment motion because, when speaking within the same=20 subsection of the person asserting such immunity, the Legislature = used the=20 term =E2=80=9Cindividual,=E2=80=9D rather than = =E2=80=9Cperson.=E2=80=9D Had the Legislature meant for the=20 person appealing to be the same person who asserted immunity from=20 liability, it would have used the same term both times within = section=20 51.014(a)(5). Reading =E2=80=9Cperson=E2=80=9D as broader than = just the individual who=20 asserted immunity from liability is also in line with the = statutory=20 definition of =E2=80=9Cperson=E2=80=9D that is applicable to the = Texas Civil Practice and=20 Remedies Code generally: under that definition, = =E2=80=9Cperson=E2=80=9D includes=20 =E2=80=9Ccorporation, organization, government or governmental = subdivision or=20 agency, business trust, estate, trust, partnership, association, = and any=20 other legal entity.=E2=80=9D Tex. Gov=E2=80=99t=20 Code Ann. =C2=A7 311.005(2) (Vernon = 2005). 3DFootnote That definition is = broad=20 enough to include Baylor.

          = Before=20 the non-suit, Hernandez had alleged that Baylor was vicariously = liable for=20 the negligent acts and omissions of its employees, including = Klein. As=20 best we can interpret it, Baylor=E2=80=99s summary-judgment ground = based on=20 Klein=E2=80=99s immunity from individual liability (like its = appellate argument on=20 the same topic) was as follows: (1) Hernandez sued Baylor under a = theory=20 of respondeat superior for the alleged negligence of Klein and = other=20 unnamed employees; (2) Texas Health and Safety Code Chapter 312 = makes=20 Baylor liable for its employees=E2=80=99 torts only to the extent = that a=20 governmental unit would be so liable under the TTCA; (3) the TTCA = makes a=20 governmental unit liable for its employees=E2=80=99 torts only to = the extent that=20 the employees would be individually liable for those = torts;=20 3DFootnote (4) appellants = proved,=20 through their summary-judgment motions, that those employees were = entitled=20 to immunity from individual liability; (5) because appellants = proved that=20 Klein and other employees were immune from individual liability, = the TTCA=20 did not waive governmental immunity from liability for Baylor, = their=20 employer; and (6) because the TTCA did not waive governmental = immunity=20 from liability for Baylor for the reason stated above, Baylor was = also=20 immune from suit, as the TTCA makes the waiver of governmental = immunity=20 from suit and liability coextensive for governmental units. The=20 complained-of order implicitly denied this ground. = Additionally=E2=80=94and as=20 discussed further below=E2=80=94although Klein is not an employee = of the state or=20 a political subdivision of the state, he is treated as if he were = for=20 purposes of determining whether he is liable for his =E2=80=9Cacts = or omissions=20 while engaged in the coordinated or cooperative activities of the = . .=20 . school.=E2=80=9D Tex. = Health & Safety=20 Code Ann. =C2=A7 312.007(a); see Young, 2007 WL = 967108, at=20 *6.

          = Accordingly,=20 Baylor, a =E2=80=9Cperson=E2=80=9D for purposes of section = 51.014(a)(5), is appealing from=20 an order denying its summary-judgment motions that were based, in = part, on=20 the assertion of immunity from individual = liability=E2=80=94whether that assertion=20 of immunity from individual liability was meritorious or = not=20 3DFootnote =E2=80=94by an individual = (Klein),=20 who was to be treated as a state employee for purposes of = ascertaining=20 whether he was individually liable for his complained-of = negligence.=20 See Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, = 10=E2=80=9311 (Tex.=20 App.=E2=80=94Houston [14th Dist.] 2006, pet. denied) (reasoning, = under section=20 51.014(a)(5), that although immunity from individual liability = necessarily=20 applies only to individuals, =E2=80=9Can agency or institution may = be shielded=20 from respondeat superior liability for its employee=E2=80=99s = negligence if the=20 employee possesses=E2=80=9D such immunity from liability, so that = =E2=80=9Ca motion for=20 summary judgment by the employer of the putative official may be = =E2=80=98based on=20 an assertion=E2=80=99 of=E2=80=9D individual immunity from = liability =E2=80=9Cfor the purposes of=20 determining whether an interlocutory appeal is available, even = though the=20 employer may not qualify for=E2=80=9D individual immunity from = liability); see=20 also Baylor Coll. of Med. v. Tate, 77 S.W.3d 467, = 470=E2=80=9371 (Tex.=20 App.=E2=80=94Houston [1st Dist.] 2002, no pet.) (indicating in = dictum that Baylor=20 could have invoked appellate jurisdiction under section = 51.014(a)(5) had=20 its doctors moved for summary judgment on basis of official = immunity and=20 had plaintiffs alleged vicarious liability against Baylor). We = thus hold=20 that we have jurisdiction over Baylor=E2=80=99s appeal to the = extent that Baylor=20 challenges the denial of its summary-judgment ground that sought = judgment=20 based on Klein=E2=80=99s immunity from individual liability. =

C.      Whether=20 the Trial Court Erred by Denying Baylor=E2=80=99s Summary-Judgment = Motions Based=20 on Klein=E2=80=99s Assertion of Immunity from Individual=20 Liability


          = By=20 non-suit filed before the trial court ruled, Hernandez had dropped = all=20 claims against Baylor. Accordingly, by the time of the trial = court=E2=80=99s=20 summary-judgment ruling, Hernandez no longer asserted claims = against=20 Baylor based on respondeat superior, mooting Baylor=E2=80=99s = summary-judgment=20 grounds that any immunity from individual liability that Klein = enjoyed=20 also precluded the waiver of any governmental immunity from suit = and=20 liability that Baylor enjoyed from the vicarious-liability claims = against=20 it. The Young court explained in dictum why such a non-suit = mooted=20 Baylor=E2=80=99s dispositive motions in the case before = it:

When the = Villegases=20 nonsuited their claims against Baylor, Baylor had not asserted any = counterclaims, crossclaims, or other claims for affirmative = relief.=20 Although Baylor asserts that its pleas to the jurisdiction and = motions for=20 summary judgment constitute affirmative claims for relief, these = pleas and=20 motions sought dismissal of the Villegases=E2=80=99 claims and did = not allege a=20 claim, independent of the Villegases=E2=80=99 claims, on which = Baylor could=20 recover compensation or relief, even if the Villegases abandoned = or were=20 unable to establish their claims. Therefore, these pleas and = motions were=20 not claims for affirmative relief. See UTMB at Galveston v. = Estate of=20 Darla Blackmon, 195 S.W.3d 98, 101 (Tex. 2006). The = Villegases=E2=80=99=20 nonsuit was effective upon filing, and no order was needed to = dismiss the=20 Villegases=E2=80=99 claims against Baylor. Id. at = 100=E2=80=93101. Even if the=20 Villegases continued to allege negligence as to two employees of = Baylor,=20 these allegations would not alter the reality that the Villegases = no=20 longer seek relief or assert claims against Baylor. Therefore, = after the=20 Villegases nonsuited their claims against Baylor, Baylor=E2=80=99s = pleas and=20 motions were moot, and the trial court correctly concluded that it = could=20 no longer rule on these pleas and motions. See=20 id.

 

Baylor=E2=80=99s = arguments=20 . . . all relate to its assertion that, if plaintiffs = sue a=20 defendant who enjoys immunity from the suit filed by the = plaintiffs, then=20 the plaintiffs may not nonsuit their claims after the defendant = has filed=20 a plea or motion asserting this immunity. Baylor cites no = authority that=20 so holds, and the Texas Supreme Court has held to the contrary. = See id.=20 (holding that plaintiff=E2=80=99s nonsuit of claims against a = defendant=20 asserting sovereign immunity was effective upon filing and mooted = the case=20 or controversy between the parties, even though filed after the = defendant=20 had asserted a plea to the jurisdiction). =


Young, 2007 = WL=20 967108, at *4 (footnote omitted). The Young court further = rejected=20 Baylor=E2=80=99s argument that the Texas Supreme Court=E2=80=99s = Blackmon decision=20 was distinguishable because it did not involve chapter 312. See = id.=20 at *4 n.2. The Young court=E2=80=99s analysis shows that, = in the instant=20 suit, Baylor=E2=80=99s summary-judgment motions had become moot = before the trial=20 court ruled on them.

          = A=20 trial court lacks subject-matter jurisdiction to rule on matters = that have=20 become moot. See Thomason v. Seale, 122 Tex. 160, = 165=E2=80=9366, 53 S.W.2d=20 764, 766 (Tex. 1932) (requiring lower court to dismiss suit that = had=20 become moot during pendency of trial-court cause); see also = UTMB at=20 Galveston v. Estate of Darla Blackmon, 195 S.W.3d 98, 101 = (Tex. 2006)=20 (considering mootness at appellate level). Any portion of a trial = court=E2=80=99s=20 ruling rendered in the absence of subject-matter jurisdiction is = void.=20 See Hong Kong Dev., Inc. v. Nguyen, No. = 01-04-00586-CV, 2007=20 WL 1633360, at *13 (Tex. App.=E2=80=94Houston [1st Dist.] June 7, = 2007, no pet.=20 h.) (=E2=80=9CAn order is void, among other things, if the trial = court lacks=20 subject-matter jurisdiction to render = it.=E2=80=9D).

          = We=20 have already held that we have jurisdiction over Baylor=E2=80=99s = appeal to the=20 extent that Baylor challenges the denial of its summary-judgment = ground=20 based on Klein=E2=80=99s immunity from individual liability. We = have also just=20 held that that summary-judgment ground was rendered moot by = Baylor=E2=80=99s=20 non-suit. Accordingly, we further hold that the trial court erred = by=20 ruling on the motions for summary judgment, to the extent that = they were=20 asserted by Baylor, because that portion of those motions had = become moot.=20 We thus vacate the order granting summary judgment in part, to the = extent=20 that that order granted the motions for summary judgment asserted = by=20 Baylor. See Tex. = R. App.=20 P. 43.2(e).

D.      Conclusion

          = We=20 hold that we have jurisdiction over Baylor=E2=80=99s appeal, but = only to the=20 extent that its appeal challenges the denial of Baylor=E2=80=99s = summary-judgment=20 ground that sought judgment based on Klein=E2=80=99s immunity from = individual=20 liability. We hold that we lack jurisdiction over Baylor=E2=80=99s = appeal in all=20 other respects. We sustain Hernandez=E2=80=99s motion to dismiss = Baylor=E2=80=99s appeal=20 to the extent herein stated, and we otherwise deny her motion. We = overrule=20 Baylor=E2=80=99s two issues. However, we further vacate that = portion of the trial=20 court=E2=80=99s order denying Baylor=E2=80=99s summary-judgment = motions. 3DFootnote

Klein=E2=80=99s = Appeal

          = In=20 two issues, Klein argues that the trial court erred by denying his = jurisdictional pleas and summary-judgment motions. Hernandez again = responds that we lack jurisdiction over Klein=E2=80=99s appeal = from either order.=20 Klein responds that appellate jurisdiction exists under sections=20 51.014(a)(8) and 51.014(a)(5) of the interlocutory-appeal=20 statute.

A.      Whether=20 Texas Civil Practice and Remedies Code Section 51.014(a)(8) = Authorizes=20 Klein=E2=80=99s Appeal


          = The=20 Young court has already held that section 51.014(a)(8) does = not=20 authorize an appeal from the denial of a jurisdictional plea (or a = summary-judgment motion asserting governmental immunity from suit) = by a=20 doctor of Baylor. Young, 2007 WL 967108, at *5. We agree. = Simply=20 put, Klein=E2=80=94for purposes of the only claim against him that = was not=20 non-suited, which was the claim against him in his individual = capacity=E2=80=94is=20 not a =E2=80=9Cgovernmental unit.=E2=80=9D See = id.

          = We=20 hold that we lack jurisdiction over Klein=E2=80=99s appeal from = the denial of his=20 jurisdictional pleas and from the denial of his summary-judgment = motions=20 to the extent that those motions were based on governmental = immunity from=20 suit. We thus cannot reach Klein=E2=80=99s issue one. We further = sustain=20 Hernandez=E2=80=99s motion to dismiss Klein=E2=80=99s appeal to = the extent of this=20 holding.

B.      Whether=20 Texas Civil Practice and Remedies Code Section 51.014(a)(5) = Authorizes=20 Klein=E2=80=99s Appeal


          = The=20 Young court also held that section 51.014(a)(5) authorizes = an=20 appeal from the denial of a summary-judgment motion asserting = immunity=20 from individual liability by a doctor of Baylor. Young, = 2007 WL=20 967108, at *5=E2=80=936. The Young court relied on Texas = Health and Safety=20 Code section 312.007(a), which provides that such an individual is = treated=20 as if he were an employee of a state agency for purposes of = =E2=80=9Cdetermining=20 the liability, if any, of the person for the person=E2=80=99s acts = or omissions=20 while engaged in the coordinated or cooperative activities of the = . .=20 . school . . . .=E2=80=9D Tex. Health=20 & Safety Code Ann. =C2=A7 312.007(a); = Young, 2007 WL=20 967108, at *6. The Young court then = reasoned:

In determining the = liability, if any, of an employee of a state agency for her acts = or=20 omissions, trial courts may rule on motions for summary judgment = asserting=20 immunity, and if trial courts deny such motions, then courts of = appeals=20 may entertain interlocutory appeals from the order denying these = motions.=20 See Tex. Civ. = Prac. &=20 Rem. Code Ann. =C2=A7 51.014(a)(5). Therefore, we conclude = that this=20 court has appellate jurisdiction over Dr. Young=E2=80=99s appeal = from the trial=20 court=E2=80=99s interlocutory order denying the Summary Judgment = Motions as to=20 her.


Young, 2007 = WL=20 967108, at *6.

          = We=20 agree with this reasoning. We thus hold that we have jurisdiction = to=20 consider Klein=E2=80=99s appeal from the denial of his = summary-judgment motions=20 asserting immunity from individual liability. We further overrule=20 Hernandez=E2=80=99s motion to dismiss Klein=E2=80=99s appeal to = the extent of this=20 holding.

C.      Whether=20 the Trial Court Erred by Denying Klein=E2=80=99s Summary-Judgment = Motion Based on=20 Immunity from Individual Liability


          = In=20 issue two, Klein argues that the trial court erred by denying his=20 summary-judgment motions because he proved as a matter of law that = he is=20 immune from individual liability under either sections 312.006(a) = or=20 312.007(b) of the Texas Health and Safety Code.

          = In=20 support of his argument under section 312.006(a), Klein notes that = that=20 section provides that a supported medical school =E2=80=9Cis not = liable for=20 its acts and omissions in connection with those activities = except to=20 the extent and up to the maximum amount of liability of state = government=20 under Section 101.023(a), Civil Practice and Remedies Code, = for the=20 acts and omissions of a governmental unit of state government = under=20 Chapter 101, Civil Practice and Remedies Code.=E2=80=9D Tex. Health & Safety Code = Ann.=20 =C2=A7 312.006(a) (emphasis added). By its plain terms, = however, section=20 312.006 applies only to Baylor, not to Klein. See id. = (=E2=80=9CA=20 . . . supported medical . . . school=20 . . . . . . is not liable for its acts = and=20 omissions . . . .=E2=80=9D) (emphasis added); = Young, 2007 WL=20 967108, at *6=E2=80=937; Hernandez, 208 S.W.3d at 11 = (dictum). A trial=20 court does not err in denying a summary judgment motion that = asserts a=20 legal bar that the movant lacks standing to = invoke.

          = Klein=20 alternatively argues that he is entitled to summary judgment under = section=20 312.007(b), which provides that =E2=80=9C[a] judgment in an = action or=20 settlement of a claim against a . . . supported medical=20 . . . school . . . under [TTCA] Chapter 101=20 . . . bars any action involving the same subject matter = by the=20 claimant against a . . . resident . . . of the = . . . school . . . whose act or omission gave = rise to=20 the claim as if the person were an employee of a governmental unit = against=20 which the claim was asserted . . . under [TTCA] Section = 101.106=20 . . . .=E2=80=9D 3DFootnote Tex. Civ. Prac. & Rem. Code = Ann. =C2=A7 312.007(b) (emphasis added). By its plain = terms,=20 section 312.007(b) requires a judgment (or settlement) against = Baylor for=20 Klein to invoke the bar. See id. No such judgment exists = because=20 Baylor had been non-suited before the trial court ruled on any = party=E2=80=99s=20 summary-judgment motions. The order dismissing Baylor upon = non-suit is not=20 a =E2=80=9Cjudgment=E2=80=9D within the meaning of section = 312.007(b): indeed, the=20 non-suit precluded a valid judgment because it rendered the only = claim=20 against Baylor moot.

          = We=20 distinguish Bustillos v. Jacobs, on which Klein relies, = because=20 (among other reasons) the individual doctors in that case moved = for=20 summary judgment under section 312.007(b) only after the = trial=20 court had granted the =E2=80=9Cplea to the jurisdiction and motion = to dismiss=E2=80=9D of=20 their employer, the University of Texas Health Science Center; = dismissed=20 the employer from the suit; and severed that order of dismissal.=20 See 190 S.W.3d 728, 731 (Tex. App.=E2=80=94San Antonio = 2005, no=20 pet.).

          = We=20 hold that the trial court did not err by denying Klein=E2=80=99s = summary-judgment=20 motions on the basis of his immunity from individual=20 liability.

          = We=20 thus overrule Klein=E2=80=99s second issue.

Conclusion

          = We=20 dismiss Baylor=E2=80=99s appeal of the order denying its = jurisdictional pleas. We=20 vacate that portion of the trial court=E2=80=99s separate order = denying Baylor=E2=80=99s=20 summary-judgment motions. We dismiss Klein=E2=80=99s appeal from = the order denying=20 his jurisdictional pleas and from the order denying his = summary-judgment=20 motions to the extent that those motions asserted what Klein = alleged to=20 have been jurisdictional grounds. We affirm the order denying = summary=20 judgment to the extent that the order denied that part of = Klein=E2=80=99s=20 summary-judgment motions that asserted immunity from individual=20 liability.

 

Tim = Taft

Justice


Panel consists of = Justices=20 Taft, Jennings, and=20 Alcala.

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