McGowen v. Huang

• Court: Texas Court of Appeals
• Writing for the Court: Morriss
• Citation: McGowen v. Huang, 120 S.W.3d 452 (Tex. App. 2003)
• Decision Date: 22 October 2003
• Docket Number: No. 06-02-00115-CV.,06-02-00115-CV.
• Petition History: pet. denied
• Parties: Robert S. McGOWEN, Individually and as Administrator of the Estate of Ronald Cole McGowen, Deceased, and Robert S. McGowen and Elisa McGowen, Individually, Appellants, v. Mau-Ping HUANG, M.D., Women's Clinic of Angleton, P.A., Paula Lawrence, R.N., and Memorial Health Ventures, Inc., F/K/A Memorial Management Services, Inc., F/K/A Memorial Care Management Services, Inc., Appellees.

120 S.W.3d 452

Robert S. McGOWEN, Individually and as Administrator of the Estate of Ronald Cole McGowen, Deceased, and Robert S. McGowen and Elisa McGowen, Individually, Appellants, v. Mau-Ping HUANG, M.D., Women's Clinic of Angleton, P.A., Paula Lawrence, R.N., and Memorial Health Ventures, Inc., F/K/A Memorial Management Services, Inc., F/K/A Memorial Care Management Services, Inc., Appellees.

No. 06-02-00115-CV.

Court of Appeals of Texas, Texarkana.

Submitted August 28, 2003.

Decided October 22, 2003.

Rehearing Overruled November 25, 2003.

Lynn J. Klement, Klement & Burridge, LLP, Angleton, for appellant.

Scott Lyford, Mills, Shirley, LLP, San Antonio, for Paula Lawrence.

Trace J. Sherer, Barbara A. Hilburn, Hilburn, Shores & Sherer, PLLC, Houston, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Elisa McGowen's 1992 traffic accident caused distress to her near-term unborn child, Ronald Cole McGowen (Cole). But, after Elisa's admission to a hospital in the Angleton-Danbury Hospital District (the District), almost five hours passed before her son was delivered by emergency caesarean section.¹ After his birth, Cole was diagnosed with a severe brain injury and, ultimately, lack of brain development. He died shortly after his sixth birthday.

Out of that tragedy, claims were filed against numerous parties, many now resolved. This appeal involves claims by Cole's estate (the Estate) against Paula Lawrence, R.N., an obstetrical nurse employed by the District; Mau Ping Huang, M.D., the on-call and attending physician; and Women's Clinic of Angleton, P.A. (the Clinic), Huang's employer. The trial court granted summary judgments in favor of each of those defendants. The Estate asserts on appeal that Lawrence is not entitled to the protection of the Texas Tort Claims Act (the Act) because there was no "prior judgment" as those words are used by the Act and because Lawrence's actions did not "give rise to" the claims against other defendants and did not concern the "same subject matter." The Estate argues on appeal that Huang and the Clinic are not protected by res judicata because the Estate had the absolute right to take the nonsuit it took previously, there was previously no final judgment on the merits, and the Estate was not in privity with Cole's parents, the McGowens. We affirm Lawrence's judgment but reverse Huang's and the Clinic's judgments and remand those causes of action to the trial court.

Procedural History

In 1993, Robert McGowen, individually, Elisa, individually, (the McGowens), and Robert McGowen, as guardian of Cole, (the Guardianship), filed suit against Angleton-Danbury General Hospital (Hospital) (a hospital operated by the District), Dean A. Atkinson, M.D., Jo Ella South, Lawrence, Huang, and the Clinic. Atkinson, the emergency room physician, and South, one of the labor and delivery nurses, both settled with the McGowens and the Guardianship in 1996. The District received partial summary judgments holding that Atkinson and Huang were not employees of the District under the Act. Huang received a partial summary judgment holding that he had no duty to any plaintiff just because he was the on-call obstetrician and that the individual claims of the McGowens were barred by limitations. Still unresolved was the Guardianship's claim that Huang was negligent after he assumed the care of Elisa and Cole. On March 10, 1997, the McGowens and the Guardianship nonsuited all remaining claims so they could appeal the partial summary judgments. The nonsuited claims included claims remaining against Huang, the Clinic, Lawrence, and Memorial Management Services. The trial court's decisions were affirmed by the Twelfth Court of Appeals. McGowen v. Huang, No. 12-97-00260-CV (Tex.App.-Tyler Jan. 29, 1999, pet. denied) (not designated for publication).

In 1998, the McGowens and the Estate filed the present suit against Huang, the Clinic, Lawrence, and Memorial Health Ventures, Inc. The McGowens and the Estate alleged that Cole's brain injury, total disability before death, and ultimate death were caused by negligence in the treatment, or lack of treatment, provided Cole and Elisa. Lawrence filed a summary judgment motion based on (1) Tex. Civ. Prac. & Rem.Code Ann. § 101.106 (Vernon 1997), prohibiting a suit against an employee of a governmental entity when a prior judgment or settlement agreement has been reached with the governmental entity, and (2) the assertion that the McGowens' individual claims were barred by limitations. Huang and the Clinic filed a summary judgment motion based on res judicata and attacked the McGowens' individual claims based on limitations. The trial court granted summary judgment in favor of all defendants on March 11, 2002. On appeal, the McGowens have abandoned their individual claims concerning Lawrence, Huang, and the Clinic; and the McGowens and the Estate have abandoned their claims concerning Memorial Health Ventures, Inc.

Reviewing Summary Judgments

Traditional summary judgment is proper when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Dresser Indus. v. Underwriters at Lloyd's, 106 S.W.3d 767 (Tex.App.-Texarkana 2003, pet. filed). Because the movant bears the burden of proof, all evidence favorable to the nonmovant is taken as true, and all doubts as to the genuine issue of material fact are resolved in favor of the nonmovant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiff's theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

Lawrence and the Act

In its first point of error, the Estate contends the trial court erred by granting summary judgment for Lawrence under Section 101.106.

Section 101.106 provides, "A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim." Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (emphasis added). In order to be entitled to immunity as a governmental employee, a party must prove: (1) there is a judgment or settlement; (2) of a claim under the Act; (3) involving the same subject matter; (4) brought by the same claimant; (5) asserted against the employee of a governmental entity; (6) whose act or omission gave rise to the claim which resulted in the judgment or settlement. Smith v. Altman, 26 S.W.3d 705, 708 (Tex.App.-Waco 2000, pet. dism'd w.o.j.). The Estate disputes three of these elements, including whether there is a judgment or settlement, whether the suits involve the same subject matter, and whether the prior decision involved claims created by Lawrence's acts or omissions.

1. Was There a Prior Judgment as Required by Section 101.106?

The Amarillo Court of Appeals has held that a nonsuit without prejudice, during the pendency of a summary judgment motion, "is not a judgment or a settlement which would bar action on a claim within the meaning of Section 101.106." Yanez v. Milburn, 932 S.W.2d 725, 728 (Tex.App.-Amarillo 1996, writ denied). In Yanez, the trial court had yet to rule on the motion for summary judgment. Id. at 726. The issue before us, however, is whether a partial summary judgment is a judgment under the Act sufficient to invoke Section 101.106.

We first focus on whether a partial summary judgment is a prior judgment.² "Section 101.106 is triggered by any judgment in an action against a governmental unit...." Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998). The Texas Supreme Court has held that a summary judgment against the governmental entity which was severed from the suit against the employee provided the employee with immunity from any further action. Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex.1997). Further, the Texas Supreme Court has held that Section 101.106 bars the simultaneous rendition of judgment against an employee and the employer. Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex.1995). Although the Estate's claims were nonsuited rather than severed, the principle of Newman appears to apply. The partial summary judgment followed by a nonsuit triggers Section 101.106.

We next focus on whether Section 101.106 requires a judgment on the merits. Recently, Houston's Fourteenth District Court of Appeals considered this issue:

The Dalehites cite authority from this Court that an order granting a plea to the jurisdiction is not a judgment on the merits, and thus cannot form the basis of a governmental employee's immunity motion. See Brown v. Prairie View A & M University, 630 S.W.2d 405 (Tex. App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.) (holding university employees were not entitled to immunity when university was dismissed for want of jurisdiction). But since Brown, the Texas Supreme Court has held just the opposite on several occasions. See Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998); Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex.1997) (both cases construing Section 101.106 to require dismissal of claims against governmental employees when claims against their governmental employer are dismissed on immunity grounds). We must follow the higher court.

Dalehite v. Nauta, 79 S.W.3d 243, 244 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); see Liu v. City of San Antonio, 88 S.W.3d 737,...