Summary
construing motion to dismiss for lack of jurisdiction as plea to jurisdiction
Summary of this case from Waller County v. SimmonsOpinion
No. 01-06-00569-CV
Opinion issued August 3, 2007.
On Appeal from the 152nd District Court Harris County, Texas, Trial Court Cause No. 2003-49449.
Panel consists of Justices TAFT, JENNINGS, and ALCALA.
OPINION
Appellants, Baylor College of Medicine ("Baylor") and Geoffrey Klein (together, "appellants"), appeal the trial court's two interlocutory orders denying their joint motions for summary judgment and their joint pleas to the jurisdiction. We determine (1) whether we have jurisdiction over Baylor's appeal in whole or in part; (2) assuming that the answer to (1) is in the affirmative, whether Baylor's summary-judgment motions had become moot before the trial court denied them; (3) whether we have jurisdiction over Klein's appeal in whole or in part; and (4) assuming that the answer to (3) is in the affirmative, whether the trial court erred by denying summary judgment for Klein on the basis of immunity from liability under Texas Health and Safety Code sections 312.006 or 312.007. We rule as follows:
"we dismiss Baylor's appeal of the order denying its jurisdictional pleas;
"we vacate that portion of the trial court's separate summary-judgment order that denied Baylor's summary-judgment motions;
"we dismiss Klein's appeal from the order denying his jurisdictional pleas and from the order denying his summary-judgment motions to the extent that those motions asserted what Klein alleged to have been jurisdictional grounds; and
"we affirm the order denying summary judgment to the extent that the order denied that part of Klein's summary-judgment motions that asserted individual immunity from liability.
Background
Baylor was a non-profit medical school. At the time of the events underlying this lawsuit, Baylor was under contract with the Texas Higher Education Coordinating Board to provide medical training to physicians who provided medical care and services at public-health-care facilities. At the times relevant to this suit, Klein was a resident physician in Baylor's Obstetrics and Gynecology residency program and was assigned to provide medical services to patients at Ben Taub General Hospital ("Ben Taub"), which was owned and operated by the Harris County Hospital District.
In June 1994, Cynthia, who was pregnant, was admitted to Ben Taub for the delivery of her daughter, Nahomy. Klein delivered Nahomy. During the delivery, Nahomy experienced a shoulder dystocia. Hernandez claimed that Klein's methods of releasing the shoulder dystocia and delivering Nahomy led to the injury of Nahomy's right arm.
Hernandez sued Baylor and Klein, alleging a health-care-liability claim against Klein, individually, and against Baylor, through respondeat superior for the acts of Klein and other unnamed Baylor employees. Appellants jointly filed a traditional motion for summary judgment and four supplements to it, asserting that Baylor and Klein were entitled to immunity from suit and liability under Texas Health and Safety Code sections 312.006 and 312.007. Appellants also jointly filed a motion to dismiss for lack of jurisdiction and four supplements to it, which we construe as pleas to the jurisdiction, in which they asserted the same grounds as they had in the summary-judgment motions. After appellants had filed several of their supplemental motions for summary judgment and jurisdictional pleas, but before the trial court's ruling on any motion or plea, Hernandez filed a notice of non-suit of Baylor. The trial court entered an order of non-suit as to Baylor before it ruled on appellants' joint motions and pleas.
At the hearing on appellants' dispositive motions and pleas, the trial court stated that it would not rule on the original and supplemental motions for summary judgment or jurisdictional pleas to the extent that they were asserted by Baylor because Baylor had been non-suited and was no longer before the trial court. Nonetheless, the orders that the trial court signed recited that the court denied both Klein's and Baylor's original and supplemental motions for summary judgment and jurisdictional pleas. Hernandez then moved the trial court to correct its orders to reflect that the court did not rule on Baylor's original and supplemental summary-judgment motions and jurisdictional pleas because Baylor had been non-suited before those orders were rendered. Nothing shows that the trial court has ruled on Hernandez's motion to correct.
Standard of Review
"A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). "[A] court deciding a plea to the jurisdiction is not required to look solely to the [plaintiff's] pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised." Id. at 555. We review de novo a trial court's ruling on a jurisdictional plea, construing the pleadings in the plaintiff's favor and looking to the pleader's intent. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
Summary judgment under rule 166a(c) is proper only when a movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 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 plaintiff's causes of action or if it conclusively establishes all elements of an affirmative defense. Johnson, 891 S.W.2d at 644.
Chapter 312
Because virtually all of the parties' arguments concern Texas Health and Safety Code chapter 312, we briefly discuss that chapter before reaching the issues.
Texas Health and Safety Code chapter 312 concerns medical and dental clinical education in public hospitals. See TEX. HEALTH SAFETY CODE ANN. §§ 312.001-.007 (Vernon 2001). The chapter's purpose is "to authorize coordination and cooperation between medical and dental units, supported medical or dental schools, and public hospitals and to remove impediments to that coordination and cooperation in order to: (1) enhance the education of students, interns, residents, and fellows attending a medical and dental unit or a supported medical or dental school; (2) enhance patient care; and (3) avoid any waste of public money." Id. § 312.001. Baylor proved through summary-judgment evidence that it fell within the definition of a "supported medical school" under chapter 312. See id. § 312.002(6) ("`Supported medical. . . school' means a medical school. . . school organized as a nonprofit corporation that is under contract with the Texas Higher Education Coordinating Board to provide educational services under Subchapter D, Chapter 61, Education Code.").
The parties dispute the effect and application of two provisions of chapter 312. Their arguments first concern section 312.006:
§ 312.006.Limitation on Liability
(a)A. . . supported medical. . . school. . . engaged in coordinated or cooperative medical. . . clinical education under Section 312.004, including patient care and the provision or performance of health or dental services or research at a public hospital, is not liable for its acts and omissions in connection with those activities except to the extent and up to the maximum amount of liability of state government under Section 101.023(a), Civil Practice and Remedies Code, for the acts and omissions of a governmental unit of state government under Chapter 101, Civil Practice and Remedies Code.
(b)The limitation on liability provided by this section applies regardless of whether the. . . supported medical. . . school. . . is a "governmental unit" as defined by Section 101.001, Civil Practice and Remedies Code.
Id. § 312.006 (emphasis added). Appellants presented summary-judgment evidence that Baylor was a supported medical school engaged in the type of medical clinical education required for Baylor to invoke section 312.006.
Second, the parties dispute the effect and application of section 312.007:§ 312.007.Individual Liability
(a)A. . . supported medical. . . school. . . is a state agency, and a director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional or employee of a. . . supported medical. . . school. . . is an employee of a state agency for purposes of Chapter 104, Civil Practice and Remedies Code, and for purposes of determining the liability, if any, of the person for the person's acts or omissions while engaged in the coordinated or cooperative activities of the. . . school. . . .
(b) A judgment in an action or settlement of a claim against a. . . supported medical. . . school. . . under Chapter 101, Civil Practice and Remedies Code, bars any action involving the same subject matter by the claimant against a director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional or employee of the. . . school. . . whose act or omission gave rise to the claim as if the person were an employee of a governmental unit against which the claim was asserted as provided under Section 101.106, Civil Practice and Remedies Code.
Id. § 312.007 (emphasis added).
Baylor's Appeal
In two issues, Baylor argues that the trial court erred in denying its jurisdictional pleas and summary-judgment motions. Specifically, Baylor argues that (1) Texas Health and Safety Code section 312.006 confers governmental immunity from suit and liability on Baylor by its alleged invocation of all provisions of the Texas Tort Claims Act ("TTCA"), which Baylor alleges has the primary purpose of "provid[ing] immunity from suit to government/state units or their equivalent"; (2) Hernandez failed to invoke the TTCA's waiver of governmental immunity from suit because her petition did not sufficiently allege the type of negligence for which the TTCA waives such immunity; (3) alternatively, Baylor's governmental immunity from suit was not waived under the TTCA because Klein enjoyed immunity from individual liability for the negligence for which Hernandez had alleged that Baylor was vicariously liable; and (4) Hernandez failed to provide the notice that the TTCA makes a jurisdictional prerequisite to suit.
Hernandez argues that we lack jurisdiction over Baylor's appeal because she had non-suited Baylor before the trial court's complained-of rulings and because Baylor is not a governmental unit for purposes of the interlocutory-appeal statute. Baylor responds that it should be treated as a governmental unit for purposes of interlocutory appeal and that the trial court lacked the power to order that Baylor be non-suited because
1."from the very moment this lawsuit was filed, the trial court lacked subject-matter jurisdiction" because Hernandez did not invoke the TTCA's waiver of immunity from suit, every provision of which chapter 312 of the Health and Safety Code allegedly incorporated by reference and applied to private entities like Baylor;
2."Chapter 312 and the immunity it provides to" Baylor trump the Texas Rules of Civil Procedure allowing non-suits;
3.a non-suit of Baylor "does not place the parties where they were before this lawsuit was filed" because "Klein may be deprived of the benefit of protections of Chapter 312, and. . . Baylor may be deprived of the ability to protect its employees";
4.the non-suit "gives the false impression that claims against Appellant Baylor no longer exist," when a suit against Klein in his official capacity is in reality a suit against Baylor;
5."Immunity granted under Chapter 312 and the right to seek dismissal of claims is in the nature of affirmative relief for. . . Baylor and its employees";
6.by non-suiting Baylor, Hernandez was "retroactively creat[ing] subject matter jurisdiction. . . to defeat a plea to the jurisdiction" and was "attempting to create jurisdiction where none existed"; and
7.holding that the trial court had the power to non-suit Baylor in this suit would "nullify the intent and actions of the Legislature and [in effect] constitute judicial legislation repealing Chapter 312."
Baylor further asserts that two provisions of the interlocutory-appeal statute — Texas Civil Practice and Remedies Code section 51.014
(a) — authorize its appeal:
• Baylor argues that section 51.014(a)(8) allows it to appeal the denial of its jurisdictional pleas and of its summary-judgment motions to the extent those motions asserted governmental immunity from suit.
• Baylor argues that section 51.014(a)(5) allows it to appeal the denial of its summary-judgment motions to the extent that those motions asserted Klein's immunity from liability.
We begin by considering our jurisdiction over Baylor's appeal.
A. Whether Texas Civil Practice and Remedies Code Section 51.014(a)(8) Authorizes Baylor's Appeal
Our sister court of appeals — in a case involving many of the same issues raised here and in which Baylor was also an appellant — recently considered whether it had jurisdiction under section 51.014(a)(8) to consider Baylor's appeal in a lawsuit alleging a similar health-care-liability claim. See Young v. Villegas, No. 14-06-00072-CV, 2007 WL 967108, at *3-4 (Tex.App.-Houston [14th Dist.] Apr. 3, 2007, no pet. h.).
The Young court held that no appellate jurisdiction lay over Baylor's appeal under Texas Civil Practice and Remedies Code section 51.014(a)(8), which provides for the interlocutory appeal of an order that "grants or denies a plea to the jurisdiction by a governmental unit," but for reasons that do not apply here. TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(8) (Vernon 1997). In Young, the plaintiffs sued Baylor and the doctor who had delivered their son at Ben Taub for the doctor's negligence that had allegedly occurred during the delivery. Young, 2007 WL 967108, at *1. As in the instant case, Baylor and the doctor filed joint motions for summary judgment and to dismiss the appeal for lack of subject-matter jurisdiction, arguing that Texas Health and Safety Code chapter 312 conferred immunity from suit and liability upon them. Id. at *1. Also as in the instant case, the plaintiffs had non-suited Baylor before the trial court ruled on the plaintiff's dispositive motions. Id. And finally, as in this case, the trial court in Young denied the doctor's summary-judgment motions and jurisdictional pleas. Id. Unlike in this case, however, the trial court did not enter an order ruling on Baylor's summary-judgment motions and jurisdictional pleas. Id.
The Young court first held that Baylor had no right to appeal under section 51.014(a)(8) because the trial court's not ruling on Baylor's pleas (and its summary-judgment motions, to the extent that they were based on governmental immunity from suit) was not an order "den[ying] a plea to the jurisdiction" under that section. Id. at *3-4. In dictum, the Young court then explained that, upon the plaintiffs' having non-suited Baylor, Baylor was "no longer a party to the case," rendering Baylor's pleas and motions moot. Id. at 4. In that same dictum, the Young court then rejected the first five arguments that Baylor makes for the existence of appellate jurisdiction over the denial of Baylor's jurisdictional pleas (and its summary-judgment motions, to the extent that they raised immunity from suit). Id.
The only material difference between this case and that in Young is that the trial court in the instant case mistakenly entered orders denying Baylor's summary-judgment motions and jurisdictional pleas after Baylor had been non-suited, rather than declining to rule on them. This distinction is important because the basis for the Young court's holding that it lacked jurisdiction over Baylor's appeal was that a refusal to rule on a jurisdictional plea is not the equivalent, under the interlocutory-appeal statute, of an order denying a jurisdictional plea. See Young, 2007 WL 967108, at *3-4; cf. In re MHI P'ship, Ltd., 7 S.W.3d 918, 920 (Tex.App.-Houston [1st Dist.] 1999, orig. proceeding) (holding that trial court's decision to defer ruling on motion to compel arbitration was, for purposes of determining statutory right to interlocutory appeal, neither order denying motion to compel arbitration nor order grating stay of arbitration). Here, in contrast, the trial court expressly denied Baylor's jurisdictional pleas and summary-judgment motions, unlike the trial court in Young. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(8) (providing for interlocutory appeal of order that "grants or denies a plea to the jurisdiction by a governmental unit"). Thus, we turn to the question of whether Baylor is a "governmental unit" within the meaning of section 51.014(a)(8) of the interlocutory-appeal statute — a matter that the Young court did not need to reach.
The interlocutory-appeal statute provides that appeal is allowed from an order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in [TTCA] Section 101.001. . . ." Id. (emphasis added). TTCA section 101.001 defines "governmental unit" as
(A)this state and all the several agencies of government that collectively constitute the government of this state, including other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, agencies, councils, and courts;
(B)a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority;
(C)an emergency service organization; and
(D)any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.
Id. § 101.001(3) (Vernon 2005) (emphasis added). Baylor is a private teaching hospital, not an "institution, agency, or organ of government" or any like kind of entity.
Baylor does not argue that it is actually a governmental unit. Rather, liberally construing Baylor's arguments, we understand Baylor to argue that the following italicized language from sections 312.006(a) and 312.007(a) renders it the equivalent of a governmental unit for purposes of, among other things, invoking the interlocutory-appeal statute:
§ 312.006. Limitation on Liability
A. . . supported medical. . . school. . . is not liable for its acts and omissions in connection with those activities except to the extent and up to the maximum amount of liability of state government under Section 101.023(a), Civil Practice and Remedies Code, for the acts and omissions of a governmental unit of state government under Chapter 101, Civil Practice and Remedies Code.
TEX. HEALTH SAFETY CODE ANN. § 312.006(a) (emphasis added).
§ 312.007. Individual Liability
A. . . supported medical. . . school. . . is a state agency, and a director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional or employee of a. . . supported medical. . . school. . . is an employee of a state agency for purposes of Chapter 104, Civil Practice and Remedies Code, and for purposes of determining the liability, if any, of the person for the person's acts or omissions while engaged in the coordinated or cooperative activities of the. . . school. . . .
TEX. HEALTH SAFETY CODE ANN. § 312.007(a) (emphasis added).
We disagree that these sections do what Baylor contends. The fact that Health and Safety Code sections 312.006 and 312.007 — which apply to supported medical schools like Baylor — invoke a select number of individual-liability, damages-cap, and indemnity provisions within the TTCA — which concerns suits against governmental units — does not convert Baylor into a governmental unit for all purposes. For example, immunity from suit is an attribute of governmental subdivisions of the state, yet section 312.006 nowhere references or implies governmental immunity from suit for private schools like Baylor. See Hernandez, 208 S.W.3d at 10-11 (concluding that section 312.006(a) does not purport to grant governmental immunity from suit to private supported medical schools like Baylor); see also TEX. HEALTH SAFETY CODE ANN. § 312.006 (entitled "Limitation on Liability") (emphasis added). Nor does the section cloak Baylor with governmental immunity from liability, another trait of governmental units. See City of Galveston v. State, 217 S.W.3d 466, 468 (Tex. 2007) ("We take as our starting point the premise that in Texas a governmental unit is immune from tort liability unless the Legislature has waived immunity."). Rather, as our sister court of appeals has held, section 312.006(a) merely imports a damages cap without extending governmental immunity from liability to supported medical schools like Baylor. See Hernandez, 208 S.W.3d at 11. Importation of a damages cap from one section of the TTCA is not the same as a blanket adoption of all the TTCA's provisions, including any implicit recognition of Baylor as a governmental unit for purposes of immunity from liability.
Likewise, the language in section 312.007(a) that a supported medical school is a "state agency" is expressly qualified by the phrases, "for purposes of Chapter 104, Civil Practice and Remedies Code, and for purposes of determining the liability, if any, of the person for the person's acts or omissions while engaged in the coordinated or cooperative activities of the. . . school. . . ." TEX. HEALTH SAFETY CODE ANN. § 312.007(a) (emphasis added). This qualification limits the situations in which Baylor may be treated as if it were a state agency to those involving indemnity of its employees and contractors (chapter 104) and determinations of its employees' (or directors', trustees', officers', interns', residents', fellows', faculty members', or other associated health care professionals") immunity from individual liability, when a judgment is rendered against Baylor. See id. § 312.007(a), (b).
In sum, the language of sections 312.006(a) and 312.007(a) on which we understand Baylor to rely does not render Baylor a state agency for all purposes, including for the purpose of availing itself of the ability to appeal under section 51.014(a)(8) of the interlocutory-appeal statute. Nor can chapter 312, by its incorporation of limited TTCA indemnity, damages-cap, and individual-liability provisions, be read to endow Baylor with a blanket governmental immunity from suit and liability, thereby implicitly acknowledging that Baylor is a governmental unit for purposes of the interlocutory-appeal statute. Simply put, nothing in sections 312.006 or 312.007 cloaks Baylor with the status of a governmental unit for purposes of the interlocutory-appeal statute — either expressly, through its terms, or implicitly, through the conferring of governmental immunity from suit or liability on Baylor.
Indeed, the language of sections 312.006 and 312.007 contemplates that not all supported medical schools will be governmental units. See TEX. HEALTH SAFETY CODE ANN. § 312.006(b) ("The limitation on liability provided by this section applies regardless of whether the. . . supported medical. . . school. . . is a "governmental unit" as defined by Section 101.001, Civil Practice and Remedies Code") (emphasis added); id. § 312.007 (barring, under certain circumstances, "any action involving the same subject matter by the claimant against a director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional or employee of the. . . school. . . whose act or omission gave rise to the claim as if the person were an employee of a governmental unit. . . .") (emphasis added).
For these reasons, we hold that Texas Civil Practice and Remedies Code section 51.014(a)(8) does not authorize Baylor's interlocutory appeal of the denial of its jurisdictional pleas (and of its summary judgment motions, to the extent that they were based on immunity from suit). We thus cannot reach Baylor's issue one. We grant Hernandez's motion to dismiss Baylor's appeal to the extent of this holding.
B. Whether Texas Civil Practice and Remedies Code Section 51.014(a)(5) Authorizes Baylor's Appeal
Baylor also asserts that it may appeal the denial of its summary-judgment motions — to the extent that they were based on Klein's immunity from individual liability — under section 51.014(a)(5) of the interlocutory-appeal statute. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(5) (Vernon 1997). That section provides that " [a] person may appeal from an interlocutory order" 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. . . ." Id. (emphasis added).
The Young court held that it lacked jurisdiction to consider a similar appeal of Baylor's under section 51.014(a)(5): While [section 51.014(a)(5)] does not expressly state that the motion or plea denied by the trial court's order must have been asserted by the person who takes the interlocutory appeal, principles of standing generally require this to be so. . . . Therefore, for Baylor to invoke subsection (5), Baylor must be an individual officer or employee of the state or a political subdivision of the state. Baylor does not claim to be such an individual, and Baylor does not argue that it should be so treated under any statute. Because Baylor falls outside of this statutory category, we reject Baylor's assertion that, based on subsection (5), this court has appellate jurisdiction over Baylor's appeal.
Young, 2007 WL 967108, at *3 (citations omitted).
We respectfully disagree with this reasoning of the Young court. The interlocutory-appeal statute provides that a "person" may appeal from an order that "is based on an assertion of immunity by an individual." See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(5). "Person" is not defined in section 51.014. However, the Legislature evidently meant for the term to mean something other than just the person who asserted immunity from liability by summary-judgment motion because, when speaking within the same subsection of the person asserting such immunity, the Legislature used the term "individual," rather than "person." Had the Legislature meant for the person appealing to be the same person who asserted immunity from liability, it would have used the same term both times within section 51.014(a)(5). Reading "person" as broader than just the individual who asserted immunity from liability is also in line with the statutory definition of "person" that is applicable to the Texas Civil Practice and Remedies Code generally: under that definition, "person" includes "corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity." TEX. GOV'T CODE ANN. § 311.005(2) (Vernon 2005). That definition is broad enough to include Baylor.
Before the non-suit, Hernandez had alleged that Baylor was vicariously liable for the negligent acts and omissions of its employees, including Klein. As best we can interpret it, Baylor's summary-judgment ground based on Klein's immunity from individual liability (like its appellate argument on the same topic) was as follows: (1) Hernandez sued Baylor under a theory of respondeat superior for the alleged negligence of Klein and other unnamed employees; (2) Texas Health and Safety Code Chapter 312 makes Baylor liable for its employees' torts only to the extent that a governmental unit would be so liable under the TTCA; (3) the TTCA makes a governmental unit liable for its employees' torts only to the extent that the employees would be individually liable for those torts; (4) appellants proved, through their summary-judgment motions, that those employees were entitled to immunity from individual liability; (5) because appellants proved that Klein and other employees were immune from individual liability, the TTCA did not waive governmental immunity from liability for Baylor, their employer; and (6) because the TTCA did not waive governmental immunity from liability for Baylor for the reason stated above, Baylor was also immune from suit, as the TTCA makes the waiver of governmental immunity from suit and liability coextensive for governmental units. The complained-of order implicitly denied this ground. Additionally — and as discussed further below — although Klein is not an employee of the state or a political subdivision of the state, he is treated as if he were for purposes of determining whether he is liable for his "acts or omissions while engaged in the coordinated or cooperative activities of the. . . school." TEX. HEALTH SAFETY CODE ANN. § 312.007(a); see Young, 2007 WL 967108, at *6.
Accordingly, Baylor, a "person" for purposes of section 51.014(a)(5), is appealing from an order denying its summary-judgment motions that were based, in part, on the assertion of immunity from individual liability — whether that assertion of immunity from individual liability was meritorious or not — by an individual (Klein), who was to be treated as a state employee for purposes of ascertaining whether he was individually liable for his complained-of negligence. See Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 10-11 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (reasoning, under section 51.014(a)(5), that although immunity from individual liability necessarily applies only to individuals, "an agency or institution may be shielded from respondeat superior liability for its employee's negligence if the employee possesses" such immunity from liability, so that "a motion for summary judgment by the employer of the putative official may be `based on an assertion' of" individual immunity from liability "for the purposes of determining whether an interlocutory appeal is available, even though the employer may not qualify for" individual immunity from liability); see also Baylor Coll. of Med. v. Tate, 77 S.W.3d 467, 470-71 (Tex.App. — Houston [1st Dist.] 2002, no pet.) (indicating in dictum that Baylor could have invoked appellate jurisdiction under section 51.014(a)(5) had its doctors moved for summary judgment on basis of official immunity and had plaintiffs alleged vicarious liability against Baylor). We thus hold that we have jurisdiction over Baylor's appeal to the extent that Baylor challenges the denial of its summary-judgment ground that sought judgment based on Klein's immunity from individual liability.
C. Whether the Trial Court Erred by Denying Baylor's Summary-Judgment Motions Based on Klein's Assertion of Immunity from Individual Liability
By non-suit filed before the trial court ruled, Hernandez had dropped all claims against Baylor. Accordingly, by the time of the trial court's summary-judgment ruling, Hernandez no longer asserted claims against Baylor based on respondeat superior, mooting Baylor's summary-judgment grounds that any immunity from individual liability that Klein enjoyed also precluded the waiver of any governmental immunity from suit and liability that Baylor enjoyed from the vicarious-liability claims against it. The Young court explained in dictum why such a non-suit mooted Baylor's dispositive motions in the case before it:
When the Villegases nonsuited their claims against Baylor, Baylor had not asserted any counterclaims, crossclaims, or other claims for affirmative relief. Although Baylor asserts that its pleas to the jurisdiction and motions for summary judgment constitute affirmative claims for relief, these pleas and motions sought dismissal of the Villegases' claims and did not allege a claim, independent of the Villegases' claims, on which Baylor could recover compensation or relief, even if the Villegases abandoned or were unable to establish their claims. Therefore, these pleas and motions were not claims for affirmative relief. See UTMB at Galveston v. Estate of Darla Blackmon, 195 S.W.3d 98, 101 (Tex. 2006). The Villegases' nonsuit was effective upon filing, and no order was needed to dismiss the Villegases' claims against Baylor. Id. at 100-101. Even if the Villegases continued to allege negligence as to two employees of Baylor, these allegations would not alter the reality that the Villegases no longer seek relief or assert claims against Baylor. Therefore, after the Villegases nonsuited their claims against Baylor, Baylor's pleas and motions were moot, and the trial court correctly concluded that it could no longer rule on these pleas and motions. See id.
Baylor's arguments. . . all relate to its assertion that, if plaintiffs sue a defendant who enjoys immunity from the suit filed by the plaintiffs, then the plaintiffs may not nonsuit their claims after the defendant has filed a plea or motion asserting this immunity. Baylor cites no authority that so holds, and the Texas Supreme Court has held to the contrary. See id. (holding that plaintiff's nonsuit of claims against a defendant asserting sovereign immunity was effective upon filing and mooted the case or controversy between the parties, even though filed after the defendant had asserted a plea to the jurisdiction).
Young, 2007 WL 967108, at *4 (footnote omitted). The Young court further rejected Baylor's argument that the Texas Supreme Court's Blackmon decision was distinguishable because it did not involve chapter 312. See id. at *4 n. 2. The Young court's analysis shows that, in the instant suit, Baylor's summary-judgment motions had become moot before the trial court ruled on them.
A trial court lacks subject-matter jurisdiction to rule on matters that have become moot. See Thomason v. Seale, 122 Tex. 160, 165-66, 53 S.W.2d 764, 766 (Tex. 1932) (requiring lower court to dismiss suit that had become moot during pendency of trial-court cause); see also UTMB at Galveston v. Estate of Darla Blackmon, 195 S.W.3d 98, 101 (Tex. 2006) (considering mootness at appellate level). Any portion of a trial court's ruling rendered in the absence of subject-matter jurisdiction is void. See Hong Kong Dev., Inc. v. Nguyen, No. 01-04-00586-CV, 2007 WL 1633360, at *13 (Tex.App.-Houston [1st Dist.] June 7, 2007, no pet. h.) ("An order is void, among other things, if the trial court lacks subject-matter jurisdiction to render it.").
We have already held that we have jurisdiction over Baylor's appeal to the extent that Baylor challenges the denial of its summary-judgment ground based on Klein's immunity from individual liability. We have also just held that that summary-judgment ground was rendered moot by Baylor's non-suit. Accordingly, we further hold that the trial court erred by ruling on the motions for summary judgment, to the extent that they were asserted by Baylor, because that portion of those motions had become moot. We thus vacate the order granting summary judgment in part, to the extent that that order granted the motions for summary judgment asserted by Baylor. See TEX. R. APP. P. 43.2(e).
D. Conclusion
We hold that we have jurisdiction over Baylor's appeal, but only to the extent that its appeal challenges the denial of Baylor's summary-judgment ground that sought judgment based on Klein's immunity from individual liability. We hold that we lack jurisdiction over Baylor's appeal in all other respects. We sustain Hernandez's motion to dismiss Baylor's appeal to the extent herein stated, and we otherwise deny her motion. We overrule Baylor's two issues. However, we further vacate that portion of the trial court's order denying Baylor's summary-judgment motions.
Klein's Appeal
In 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's appeal from either order. Klein responds that appellate jurisdiction exists under sections 51.014(a)(8) and 51.014(a)(5) of the interlocutory-appeal statute.
A. Whether Texas Civil Practice and Remedies Code Section 51.014(a)(8) Authorizes Klein's Appeal
The Young court has already held that section 51.014(a)(8) does not authorize an appeal from the denial of a jurisdictional plea (or a summary-judgment motion asserting governmental immunity from suit) by a doctor of Baylor. Young, 2007 WL 967108, at *5. We agree. Simply put, Klein — for purposes of the only claim against him that was not non-suited, which was the claim against him in his individual capacity — is not a "governmental unit." See id.
We hold that we lack jurisdiction over Klein's appeal from the denial of his jurisdictional pleas and from the denial of his summary-judgment motions to the extent that those motions were based on governmental immunity from suit. We thus cannot reach Klein's issue one. We further sustain Hernandez's motion to dismiss Klein's appeal to the extent of this holding.
B. Whether Texas Civil Practice and Remedies Code Section 51.014(a)(5) Authorizes Klein's Appeal
The Young court also held that section 51.014(a)(5) authorizes an appeal from the denial of a summary-judgment motion asserting immunity from individual liability by a doctor of Baylor. Young, 2007 WL 967108, at *5-6. The Young court relied on Texas Health and Safety Code section 312.007(a), which provides that such an individual is treated as if he were an employee of a state agency for purposes of "determining the liability, if any, of the person for the person's acts or omissions while engaged in the coordinated or cooperative activities of the. . . school. . . ." TEX. HEALTH SAFETY CODE ANN. § 312.007(a); Young, 2007 WL 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 omissions, trial courts may rule on motions for summary judgment asserting immunity, and if trial courts deny such motions, then courts of appeals may entertain interlocutory appeals from the order denying these motions. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(5). Therefore, we conclude that this court has appellate jurisdiction over Dr. Young's appeal from the trial court's interlocutory order denying the Summary Judgment Motions as to her.
Young, 2007 WL 967108, at *6.
We agree with this reasoning. We thus hold that we have jurisdiction to consider Klein's appeal from the denial of his summary-judgment motions asserting immunity from individual liability. We further overrule Hernandez's motion to dismiss Klein's appeal to the extent of this holding.
C. Whether the Trial Court Erred by Denying Klein's Summary-Judgment Motion Based on Immunity from Individual Liability
In issue two, Klein argues that the trial court erred by denying his summary-judgment motions because he proved as a matter of law that he is immune from individual liability under either sections 312.006(a) or 312.007(b) of the Texas Health and Safety Code.
In support of his argument under section 312.006(a), Klein notes that that section provides that a supported medical school "is not liable for its acts and omissions in connection with those activities except to the extent and up to the maximum amount of liability of state government under Section 101.023(a), Civil Practice and Remedies Code, for the acts and omissions of a governmental unit of state government under Chapter 101, Civil Practice and Remedies Code." TEX. HEALTH SAFETY CODE ANN. § 312.006(a) (emphasis added). By its plain terms, however, section 312.006 applies only to Baylor, not to Klein. See id. (" A. . . supported medical. . . school. . . . . . is not liable for its acts and omissions. . . .") (emphasis added); Young, 2007 WL 967108, at *6-7; Hernandez, 208 S.W.3d at 11 (dictum). A trial court does not err in denying a summary judgment motion that asserts a legal bar that the movant lacks standing to invoke.
Klein alternatively argues that he is entitled to summary judgment under section 312.007(b), which provides that " [a] judgment in an action or settlement of a claim against a. . . supported medical. . . school. . . under [TTCA] Chapter 101. . . bars any action involving the same subject matter by the claimant against a. . . resident. . . of the. . . school. . . whose act or omission gave rise to the claim as if the person were an employee of a governmental unit against which the claim was asserted. . . under [TTCA] Section 101.106. . . ." TEX. CIV. PRAC. REM. CODE ANN. § 312.007(b) (emphasis added). By its plain terms, section 312.007(b) requires a judgment (or settlement) against Baylor for Klein to invoke the bar. See id. No such judgment exists because Baylor had been non-suited before the trial court ruled on any party's summary-judgment motions. The order dismissing Baylor upon non-suit is not a "judgment" within the meaning of section 312.007(b): indeed, the non-suit precluded a valid judgment because it rendered the only claim against Baylor moot.
We distinguish Bustillos v. Jacobs, on which Klein relies, because (among other reasons) the individual doctors in that case moved for summary judgment under section 312.007(b) only after the trial court had granted the "plea to the jurisdiction and motion to dismiss" of their employer, the University of Texas Health Science Center; dismissed the employer from the suit; and severed that order of dismissal. See 190 S.W.3d 728, 731 (Tex.App.-San Antonio 2005, no pet.).
We hold that the trial court did not err by denying Klein's summary-judgment motions on the basis of his immunity from individual liability.
We thus overrule Klein's second issue.
Conclusion
We dismiss Baylor's appeal of the order denying its jurisdictional pleas. We vacate that portion of the trial court's separate order denying Baylor's summary-judgment motions. We dismiss Klein's appeal from the order denying his jurisdictional pleas and from the order denying his summary-judgment motions to the extent that those motions asserted what Klein alleged to have been jurisdictional grounds. We affirm the order denying summary judgment to the extent that the order denied that part of Klein's summary-judgment motions that asserted immunity from individual liability.