Klein v. Hernandez

• Decision Date: 07 May 2010
• Docket Number: No. 08-0453.,08-0453.
• Citation: 315 S.W.3d 1
• Parties: Geffrey KLEIN, M.D. and Baylor College of Medicine, Petitioners, v. Cynthia HERNANDEZ, as the Parent and Next Friend of N.H., a Minor, Respondent.
• Court: Texas Supreme Court

315 S.W.3d 1

Geffrey KLEIN, M.D. and Baylor College of Medicine, Petitioners,

v.Cynthia HERNANDEZ, as the Parent and Next Friend of N.H., a Minor, Respondent.

No. 08-0453.

Supreme Court of Texas.

Argued Oct. 7, 2009.

Decided May 7, 2010.

Kendall M. Gray, Cameron Phair Pope, Jeffrey B. McClure, Laura M. Trenaman, Elizabeth A. Wiley, Andrews & Kurth, L.L.P., Marion Woodrow Kruse Jr., Alicia T. Freed, Kruse Law Firm, P.C., Houston TX, for Geffrey Klein, M.D.

Robert J. Talaska, Theodore G. Skar-bowski, Timothy Lyle Culberson, The Talaska Law Firm, P.L.L.C., Houston, TX, for Respondent.

Cameron Phair Pope, Kendall M. Gray, Andrews & Kurth, L.L.P., Houston, TX, for Baylor College of Medicine.

Justice MEDINA delivered the opinion of the Court.

By statute, a state employee may appeal an interlocutory order denying a motion for summary judgment based on an assertion of immunity. Tex. Civ. Prac. & Rem. Code § 51.014(5). The issue here is whether a resident physician, working at a public hospital under an agreement with his private medical school, may take an interlocutory appeal under this statute. The court of appeals decided he could not, dismissing the interlocutory appeal because the resident physician was not a state employee. 260 S.W.3d 1, 10-11. We conclude, however, that by statute a resident physician at a private medical school is to be treated like a state employee for purposes of section 51.014(5) when the underlying litigation arises from a residency program coordinated through a supported medical school at a public hospital. Accordingly, we reverse the court of appeals' judgment, reinstate the physician's inter locutory appeal, and remand the case to the court of appeals for its review.

I

Cynthia Hernandez sued Dr. Geffrey Klein and Baylor College of Medicine, alleging malpractice during the delivery of her daughter at Ben Taub General Hospital. Ben Taub is a part of the Harris County Hospital District, a political subdivision of the State. See Tex. Health & Safety Code § 281.002(a); see also Tex. Const, art. IX, § 4. Baylor is a private, non-profit medical school, but is also a "supported medical school," which means that it has contracts with the Texas Higher Education Coordinating Board and receives state funding specifically allocated for training physicians who provide medical care at public hospitals such as Ben Taub. Tex Health & Safety Code § 312.002(6). Dr. Klein was a Baylor obstetrics and gynecology resident at Ben Taub under this arrangement when he delivered Hernandez's daughter in 1994.

Responding to Hernandez's claims, Baylor and Klein jointly filed a motion to dismiss for lack of jurisdiction and a motion for summary judgment, asserting they were entitled to immunity under sections 312.006 and 312.007 of the Texas Health and Safety Code. Hernandez responded to the motions, but also non-suited her claim against Baylor. Despite the non-suit, the trial court denied the motions as to both defendants, and Baylor joined Klein in appealing the trial court's interlocutory order.

The court of appeals dismissed both appeals. 260 S.W.3d 1. The court held it lacked jurisdiction to consider the interlocutory appeals under either section 51.014(a)(5) or (a)(8) of the Civil Practice and Remedies Code. Id. at 7-11. Section 51.014(a)(5) allows an interlocutory appeal from the denial of "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," while section 51.014(a)(8) authorizes an interlocutory appeal from the grant or denial of "a plea to the jurisdiction by a governmental unit." Tex. Civ. Prac. & Rem.Code § 51.014(a)(5), (8). The court reasoned that it lacked jurisdiction under (a)(5) because Klein was not an "officer or employee of the state," and under (a)(8) because Baylor was not a "governmental unit." 260 S.W.3d at 7-11. The court also concluded that Chapter 312 of the Texas Health and Safety Code did not confer immunity upon either Baylor or Klein. Id. at 8, 10.

II

Because this is an interlocutory appeal, we first consider the matter of our own jurisdiction. Interlocutory appeals are generally final in the courts of appeals, Tex. Gov't Code § 22.225(b)(3), although exceptions to this general rule exist. See Tex. Gov't Code § 22.001(a)(l)-(2), (c), (d); see also Univ. of Tex. Sw. Med. Ctr. of Dallas v. Margulis, 11 S.W.3d 186, 187 (Tex.2000) (per curiam). One exception is when a court of appeals' decision conflicts with another court of appeals's prior decision. Tex. Gov't Code § 22.001(a)(2). That exception applies here as the court acknowledged that its decision regarding Klein conflicted with the Fourteenth Court of Appeals's decision in Young v. Villegas, 231 S.W.3d 1 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). See 260 S.W.3d at 9-11 (disagreeing with the conclusion in Young that "a Baylor doctor, who was similarly situated to Dr. Klein in the instant case," was authorized by section 51.014(5) "to appeal the denial of his summary judgment motion, in which he asserted immunity from individual liability").

We also have jurisdiction over this appeal because the court of appeals declined to exercise its interlocutory-appellate jurisdiction. See Lewis v. Funder-burk, 253 S.W.Sd 204, 206 (Tex.2008). Even though we may lack jurisdiction over the substance of an appeal, we always have jurisdiction to determine whether the court of appeals correctly applied its jurisdiction. Badiga, v. Lopez, 274 S.W.3d 681, 682 n. 1 (Tex.2009); Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992) (citing Long v. Humble Oil & Ref Co., 380 S.W.2d 554, 555 (Tex.1964) (per curiam)).

Ill

As another preliminary matter, we note the parties' agreement here that Hernandez's non-suit left no case or controversy as to Baylor. As a general rule, a plaintiff may voluntarily dismiss a case-take a non-suit at any time before all of the plaintiff's evidence other than rebuttal evidence has been introduced. Tex.R. Civ. P. 162. When this occurs, the non-suit typically moots the case or controversy from the moment of its filing or pronouncement in open court. Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmail, 195 S.W.3d 98, 100 (Tex.2006) (per curiam). Exceptions exist, such as when the defendant has asserted a claim for affirmative relief, see Gen. Laud Office of State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990), but Baylor submits it had no such claim in the trial court.

Appellate courts are prohibited from deciding moot controversies because the sep-aration-of-powers article prohibits advisory opinions on abstract questions of law. Tex. Const, art. II, § 1; Brooks v. Nor-tligleu Ass'n, 141 S.W.3d 158, 164 (Tex. 2004). Assuming the non-suit in the trial court ended the case against Baylor, as the parties apparently agree, there was no live controversy for the court of appeals to decide. But the court of appeals did not dismiss Baylor's appeal because the case was moot, but rather reasoned that Baylor was not entitled to an interlocutory appeal because it was not a "governmental unit." See 260 S.W.3d at 7-8 (holding that the Health and Safety Code does not make Baylor a "governmental unit" entitled to interlocutory appeal). Baylor therefore asks us to declare the part of the court of appeals's opinion pertaining to it void as an advisory opinion. Hernandez, on the other hand, argues that the court of appeals's judgment is correct whether based on Baylor's failure to meet the requirements for an interlocutory appeal or due to the absence of a live controversy between the parties. Under either circumstance, the correct action is to dismiss Baylor's appeal, which is what the court of appeals has done.

When a plaintiff is entitled to a non-suit, the trial court's dismissal order is ministerial. Honks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex.1991). Before the motions hearing in this case, the trial court acknowledged its understanding of this, observing that the non-suit had taken Baylor out of the case. Its subsequent order, however, purported to deny both Klein's and Baylor's motions. This may have been inadvertent, but even if the trial court changed its mind about Baylor's status in the case, the determination is no basis for an interlocutory appeal. That is, even if we assume the trial court's action here to be a refusal to comply with its ministerial duty to dismiss, no statute provides Baylor the right to an interlocutory appeal under these circumstances. Mandamus, we have said, is the appropriate remedy when a trial court refuses to comply with its ministerial duty to dismiss after a non-suit. Id.

While we do not necessarily agree with the court of appeals's reasons for dismiss ing Baylor's appeal, we agree with its judgment. The court did not err in dismissing Baylor's appeal and that part of its judgment is accordingly affirmed. The viability of Klein's interlocutory appeal, however, remains in dispute because Hernandez has not similarly dismissed her claim against him.

IV

Klein asserts a right to an interlocutory appeal under section 51.014(a)(5) of the Civil Practice and Remedies Code. That section provides for the appeal of an 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." Tex. Civ. Prac. & Rem.Code § 51.014(a)(5). The order here unquestionably meets some of the statutory requirements: (1) the summary judgment motion is based on an individual's assertion of immunity, and (2) the trial court's order denies the motion. The requirement in dispute concerns the status of the movant; that is, whether this individual, who is a resident physician at a supported medical school, is also a state employee for purposes of the statute.

Klein contends that section 312.007(a) of the Texas Health and Safety Code classifies him as a state employee for purposes of his...