Saturday, June 7, 2008

UEFJA Foreign Judgment properly domesticated - Challenge to enforceability in Texas fails

BancorpSouth Bank v. Prevot, No. 14-06-00302-CV (Tex.App.- Houston [14th Dist.] May 22, 2008)(Subst. op. by Seymore) (foreign judgment enforceable in Texas, UEFJA, jurisdiction in Texas)
Opinion by Justice Seymore
Panel members: Justices Brock Yates, Edelman and Seymore
Full case stayle: BancorpSouth Bank f/k/a Bank of Mississippi v. Albert Prevot
Fourteenth Court of Appeals (see other May 2008 Opinion from the 14th Court)

Appeal from 215th District Court of Harris County
Trial Court
Judge: Levi James Benton

S U B S T I T U T E O P I N I O N
BY JUSTICE CHARLES SEYMORE

We grant appellee's motion for rehearing. We withdraw our opinion dated February 26, 2008 and issue this substitute opinion.

Appellant, BancorpSouth Bank f/k/a Bank of Mississipi ("Bancorp"), filed a motion to enforce a 2004 Mississippi judgment against appellee, Albert Prevot, that was filed in Texas in 2005 pursuant to the Uniform Enforcement of Foreign Judgments Act ("UEFJA").[1] The trial court signed a final order stating it did not grant or deny the motion because it had no jurisdiction.

We reverse and render judgment that the trial court has jurisdiction to enforce the 2004 Mississippi judgment, filed in Texas in 2005, and that the 2004 Mississippi judgement, filed in Texas in 2005, is presently enforceable as a Texas judgment.

* * *

The Judgment Is Presently Enforceable.

In sum, the trial court erred by ruling it lacks jurisdiction to enforce the judgment. Prevot contends his arguments opposing enforcement of the judgment are meritorious; thus, we should uphold the trial court's order even if it erred by ruling it lacks jurisdiction to enforce the judgment. We disagree.
As we have discussed, the Mississippi judgment became a final, enforceable Texas judgment when filed in Texas. Prevot did not raise his challenges to enforcement in a timely post-judgment motion or appeal from the judgment. Further, he may not collaterally attack the judgment on these grounds. Consequently, Prevot bears the burden to obtain an order vacating the judgment via a bill of review. Therefore, short of Prevot's prevailing on a bill of review, the trial court has no alternative but to enforce the judgment as requested by Bancorp in its motion.
[15] When reversing a trial court's judgment, we must render the judgment the trial court should have rendered, except when (1) remand is necessary for further proceedings, or (2) the interests of justice require remand for another trial. Tex. R. Civ. App. 43.3. Accordingly, our ruling the trial court has jurisdiction to enforce the judgment also militates a holding that the judgment is presently enforceable. We sustain Bancorp's first issue.[16]

We reverse the trial court's final order and render judgment that (1) the trial court has jurisdiction to enforce the "Default Judgment" entered by the Circuit Court of Harrison County, Mississippi, Second Judicial District, on November 23, 2004, and filed in Texas on February 17, 2005, and (2) the "Default Judgment" entered by the Circuit Court of Harrison County, Mississippi, Second Judicial District, on November 23, 2004, and filed in Texas on February 17, 2005 is presently enforceable as a Texas judgment.

/s/ Charles W. Seymore, Justice

Justice Nuchia and Justice Keyes part ways in DWI appeal

Wood v. State of Texas (Tex.App.- Houston [1st Dist.] June 5, 2008)(Majority Opinion by Sam Nuchia) (DWI conviction, ineffective assistance of counsel) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Nuchia
Before Justices Sam Nuchia, Evelyn Keyes and Laura Carter Higley
Peter R. Wood v. The State of TexasAppeal from County Court at Law of Washington County
Dissenting Opinion by Justice Evelyn Keyes
See more June 2008 opinions from the First Court of Appeals

PANEL'S MAJORITY OPINION
ON PETITION FOR DISCRETIONARY REVIEW
BY SAMUEL NUCHIA

Appellant, Peter R. Wood, has filed a petition of discretionary review. Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our April 8, 2008 opinion and judgment and substitute this modified opinion and judgment.

Appellant was convicted by a jury of operating a motor vehicle in a public place while intoxicated (driving while intoxicated), enhanced by a prior conviction for the same offense. Tex. Penal Code Ann. § 49.04 (Vernon 2003), § 49.09(a) (Vernon Supp. 2007). The jury assessed punishment at six months in jail and a $4,000.00 fine, which is a misdemeanor. The county court at law suspended appellant's sentence and placed him on community supervision for 24 months, including 30 days confinement in jail.

Appellant was initially pulled over for speeding. The police officer testified that he saw appellant stagger to the rear of appellant's vehicle and that appellant smelled of alcohol. The office conducted field sobriety tests and concluded that appellant was "highly intoxicated." Appellant refused a breath test and admitted to consuming two beers. The encounter between appellant and the officer was videotaped and shown to the jury during the guilt-innocence phase of trial.

Appellant does not challenge the facts related to the offense. Instead, in his sole point of error he contends his trial counsel rendered ineffective assistance by allowing the State to introduce evidence of appellant's prior driving-while-intoxicated offense during the guilt-innocence phase. (1) See Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon 2007) ("When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07."); see also Wilson v. State, 772 S.W.2d 118, 123 (Tex. Crim. App. 1989) (holding that former Revised Statutes article 6701l-1(f) (2) does not create separate offense for driving while intoxicated and causing serious bodily injury: offense is for driving while intoxicated, and punishment for that offense is enhanced because defendant caused serious bodily injury); Will v. State, 794 S.W.2d 948, 952-53 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd). Appellant filed a motion for new trial, and the trial court set a hearing, but the record does not reflect that the hearing was held.

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (applying Strickland standard at punishment phase of noncapital trial). Appellant must show both that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel's error or omission, the result of the proceedings would have been different, i.e., the error or omission is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813.

It is the defendant's burden to prove ineffective assistance of counsel by a preponderance of the evidence. Id. A "[d]efendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). We will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. See Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd); Gamble, 916 S.W.2d at 93. However, "in the rare case where the record on direct appeal is sufficient to prove that counsel's performance was deficient, an appellate court should obviously address the claim . . . ." Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).

Appellant argues that counsel could have no reasoning or strategy for not objecting. The State admits that reading the enhancement paragraph to the jury during the guilt-innocence phase was improper, but argues that the error was waived. See Frausto v. State, 642 S.W.2d 506, 508-09 (Tex. Crim. App. [Panel Op.] 1982); Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.--Houston [14th Dist.] 1997, no pet.) (holding that violation of article 36.01(a)(1) is waivable). The State does not address whether counsel may have declined to object due to trial strategy. Instead, the State argues that appellant has not shown that counsel's performance, in its entirety, was deficient.

We agree with appellant that his counsel could have no reasoning or strategy for not objecting. Introducing a prior conviction for the same offense during the guilt-innocence phase violated Code of Criminal Procedure article 36.01(a)(1), a statute enacted to prevent the extreme prejudice that almost inevitably results in that situation. See Frausto, 642 S.W.2d at 508. Appellant also argues, and we agree, that the evidence of guilt at trial is not overwhelming. Appellant was initially pulled over for speeding, and although he failed field sobriety tests, refused a breath test, and admitted to consuming two beers, the videotape of the arrest does not reveal obvious signs of intoxication. Given the totality of the evidence, it is not possible to predict what the jury as fact finder would have done without the prejudicial admission of the prior conviction. We therefore hold that appellant has met his burden to show there is a reasonable probability that, but for the admission of appellant's prior conviction, the result of the proceedings would have been different.

We hold that appellant's counsel was ineffective and sustain appellant's point of error. We reverse the judgment of the trial court and remand the case for further proceedings pursuant to Code of Criminal Procedure article 44.29(a). Tex. Code Crim. Proc. Ann. art. 44.29(a) (Vernon 2007). Appellant's petition for discretionary review is dismissed pursuant to Texas Rule of Appellate Procedure 50.

Sam Nuchia
Justice

Panel consists of Justices Nuchia, Keyes, and Higley.
Justice Keyes, dissenting.
Publish. Tex. R. App. P. 47.2(b)

1. This is not a situation in which the jury at the guilt-innocence phase may be informed of the existence of prior convictions for driving while intoxicated because the prior convictions are necessary to establish jurisdiction in the district court for a felony grade criminal case. See, e.g., Martin v. State, 200 S.W.3d 635, 638-41 (Tex. Crim. App. 2006).
2. Act of May 17, 1985, 69th Leg., R.S., ch. 462, § 18, 1985 Tex. Gen. Laws 1624, 1630 (Revised Statutes article 6701l-1(f), since repealed).

DISSENTING OPINION BY JUSTICE KEYES

I respectfully dissent. I agree with the majority that the introduction of appellant's prior conviction at the guilt-innocence phase of appellant's trial was error. However, I would find that the evidence of appellant's guilt was overwhelming and that the jury could have found beyond a reasonable doubt, on the basis of the evidence adduced at trial, that appellant was driving while intoxicated, without consideration of the prior conviction. Therefore, because appellant's prior conviction for DWI was admissible at the punishment phase under article 36.01(a)(1) of the Texas Code of Criminal Procedure (1) and because I believe only appellant's punishment was affected by the premature introduction of the evidence of appellant's prior conviction, I would hold that appellant has not shown that the result of his trial would have been different but for his counsel's error. Therefore, he has not satisfied the second prong of Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984).

I would hold that appellant's trial counsel was not ineffective for failing to object to the State's introduction of evidence of appellant's prior DWI conviction during the guilt-innocence phase. I would affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Nuchia, Keyes, and Higley.

Justice Keyes, dissenting.

Publish. Tex. R. App. P. 47.2(b).

1. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon 2007).

Probate Judge Mike Wood Reversed: Alpert v. Riley (Tex.App. - Houston 2008)

Alpert v. Riley No. 01-06-00505-CV (Tex.App.- Houston [1st Dist.] June 5, 2008)(Bland) (probate law, trust administration dispute)
Full case style: Roman Alpert and Renee Picazo, Guardian of the Estate of Daniel Alpert, a Minor v. Mark Riley, Robert Alpert
Opinion by Justice Jane Nenninger Bland
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Mike Wood
Disposition: Reversed and remanded

O P I N I O N

In this trust management dispute involving three separate trusts, Roman Alpert and Renee Picazo, Guardian of the Estate of Daniel Alpert, a minor (collectively, the beneficiaries), appeal the trial court’s judgment. Specifically, they contend that the trial court erred in granting summary judgment that Mark Riley, appellee, was trustee of the three trusts as a matter of law, and in denying their motion urging the opposite conclusion—that, as a matter of law, he was not.

The beneficiaries also ask that we reverse the judgment for other reasons, asserting that the trial court erred in (1) disregarding the jury’s finding that Riley breached his fiduciary duty; (2) confirming Riley’s payment of attorney’s fees and refusing to enter judgment against Riley for their attorney’s fees; and (3) reappointing Riley as his own successor trustee.

Robert Alpert, the trusts’ settlor and father of the trust beneficiaries, also appeals the trial court’s judgment, which finds him liable for breach of fiduciary duty and awards over $4 million in damages and attorney’s fees to Riley on behalf of the trusts, pursuant to the trial court and jury findings that Alpert breached his fiduciary duty to the beneficiaries.

Alpert contends that, as settlor of the trusts, (1) he had no fiduciary duty to the trusts, and (2) Riley has no standing to sue him absent such a duty.

We conclude that (1) the trial court erred in declaring Riley to be trustee of the three trusts as a matter of law because fact issues exist as to his status as trustee for two of the trusts, and he is not a trustee of the third trust pursuant to the express terms of the trust instrument; (2) the judgment against Alpert for breach of fiduciary duty must be reversed because, under the terms of these trusts, the settlor owes no fiduciary obligation to the trust’s beneficiaries and Riley, as trustee, has no standing to sue the parent of a trust beneficiary for breach of a parent’s fiduciary duty to a minor child; (3) the trial court erred in disregarding the jury’s verdict as to Riley’s breach of fiduciary duty but, as the jury awarded no damages, the beneficiaries recover nothing on the jury verdict; (4) while a remand is appropriate after reinstatement of the verdict as to Riley’s breach of fiduciary duty to consider the remedy of equitable disgorgement of trustee compensation, a remand is unnecessary here because Riley is not entitled to trustee compensation as a matter of law; and (5) the trial court’s award of attorney’s fees, and the denial of the beneficiaries’ claim for fees, must be reversed and remanded for further proceedings, given our resolution of the merits.

Alpert and the beneficiaries also filed a separate appeal challenging the trial court’s denial of their request that Riley post a security bond pending appeal.[1] Because the trial court’s decision on the bond does not constitute a final
judgment, we lack jurisdiction over that appeal and dismiss it for that reason, but consider its substance as a request for relief under the main appeal pursuant to Texas Rule of Appellate Procedure 24. Tex. R. App. P. 24.4(a). As to the merits, we conclude that the trial court properly denied the request for a security bond and deny the requested relief.

* * *

Conclusion

Based on the holdings set forth in this opinion [click to read omitted opinion], we rule as follows:

(1) We reverse part I of the judgment in which the trial court disregarded the jury’s answer to Juror Question No. 8, i.e., the affirmative answer to whether Riley breached his fiduciary duty to the trusts or the beneficiaries, but render judgment that the beneficiaries take nothing on this claim because the jury awarded nothing in damages, and our other rulings obviate the claim for equitable disgorgement of trustee compensation. We remand the beneficiaries’ claim for attorney’s fees to the trial court for further proceedings.

(2) We reverse part II of the judgment ratifying and confirming the trial court’s June 21, 2004, September 30, 2004, December 14, 2004, December 21, 2004, January 31, 2004, and April 4, 2005 orders authorizing payments of expenses to Riley and fees to his counsel, and remand for further proceedings consistent with this opinion. We reverse and render judgment that Riley take nothing on his claims for trustee compensation.

(3) We reverse parts III and IV of the judgment, in which the trial court orders that Riley, as trustee of the RAT and DAT, and on behalf of the RAT and DAT, have judgment against Alpert and awards him attorney’s fees and interest relating to those claims, and render judgment that Riley on behalf of the trusts take nothing on the claims against Alpert.

(4) We reverse part VI of the judgment, in which the trial court ratifies and confirms prior payments of attorney’s fees and expenses to Riley, and remand for further proceedings consistent with this opinion.

(5) We affirm parts VII, VIII, and IX of the judgment.[8]

(6) We reverse part X of the judgment, in which the trial court ratifies its prior declarations that Riley was properly appointed Trustee of the RAT, the DAT, and the 1996 trust, and that Riley is the trustee of those trusts and has all the powers conferred by the Texas Trust Code and the trust instruments, and (a) with respect to the findings relating to the RAT and DAT, remand for further proceedings consistent with this opinion, and (b) with respect to the findings relating to the 1996 trust, render a declaration that Riley was not properly appointed trustee of the 1996 trust, is not and has not been trustee of the 1996 trust, and does not hold any of the powers conferred on trustees by the 1996 trust instrument and applicable statute.

(7) We reverse the portion of part XI of the judgment that approves any award of trustee compensation for Riley and render judgment on Riley’s requests for trustee compensation that Riley take nothing. We affirm the remainder of part XI.

(8) We reverse part XII of the judgment concerning attorney’s fees and remand for further proceedings consistent with this opinion.

(9) We affirm part XIII of the judgment only to the extent it recognizes the release of Riley as trustee and termination of his trusteeship as pertains to any trusteeship that may later be found to be valid. We reverse the remainder of part XIII and render judgment that any successor trustees for the RAT, DAT, and 1996 trust are to be selected in accordance with the terms of the applicable trust instrument, after identification of the valid trustee for each trust.

(10) We deny the appellants’ request that Riley post a security bond pending appeal.We dismiss the security bond appeal filed under number 01-06‑00505‑CV for lack of jurisdiction. We grant appellants’ agreed motion to substitute counsel and to designate lead counsel. All other pending motions are dismissed as moot. All stays granted are lifted upon the issuance of this opinion and judgment.

Jane Bland, Justice

Friday, June 6, 2008

Libel suit against ethnic newspaper fails - actual malice not shown

Wang v. Tang No. 01-08-00009-CV (Tex.App.- Houston [1st Dist.] June 5, 2008)(Higley) (interlocutory appeal, media defendant, libel, no malice)
Opinion by
Justice Laura Carter Higley
Before Chief Justice Radack, Justices Keyes and Higley
Jianguang Wang and Yellow Emperor Communications, Inc., d/b/a Houston Chinese Press v. David Y. Tang
Appeal from 164th District Court of Harris County
Trial Court
Judge: Hon. Martha Hill Jamison
Disposition: Reverse Trial Court judgment and render judgment

Applicable Principles

In defamation suits involving public figures, the actual malice standard serves to protect innocent but erroneous speech on public issues, while deterring “calculated falsehoods.” See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 2000). A showing of “actual malice” in a defamation suit requires proof that the defendant made a statement with knowledge that it was false or with reckless disregard of whether it was true or false. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004); Huckabee, 19 S.W.3d at 420. Reckless disregard is a subjective standard, focusing on the defendant’s state of mind. Isaacks, 146 S.W.3d at 162; Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Specifically, the plaintiff must establish that the defendant in fact entertained serious doubts as to the truth of his publication, or had a high degree of awareness of the probable falsity of the published information. Isaacks, 146 S.W.3d at 162 (citing Bentley, 94 S.W.3d at 591) (internal quotations omitted). A public figure may rely on circumstantial evidence to prove a defendant’s state of mind. Bentley, 94 S.W.3d at 591.

HOLDING: The summary judgment record establishes, as a matter of law, that the Houston Chinese Press did not publish the alleged defamatory remarks with actual malice. Tang has not carried his summary judgment burden to show that a genuine issue of material fact exists with regard to the actual malice element.We hold that the Houston Chinese Press is entitled to summary judgment.

Vioxx Appellate Opinion: Merck & Co. v. Ernst (Tex.App.- Houston 2008)


Houston Court of Appeals Overturns Jury's Damages Award in Vioxx case.

UPDATE: This opinion was withdrawn by the Court and replaced with a new one on June 4, 2009. The result remains the same.

Merck & Co., Inc. v. Ernst , No. 14-06-00835-CV (Tex.App.- Houston [14th Dist.] May 29, 2008)(Hedges) (product liability, Vioxx jury award overturned, insufficient evidence of causal link)
Opinion written by Chief Justice Hedges
Members of the panel: Chief Justice Adele Hedges, Justices John Anderson and Justice Jeff Brown
Full appellate case style: Merck & Co., Inc. v. Carol A. Ernst, Individually and as Representative of the Estate of Robert Charles Ernst, Deceased
Trial Court: 23rd District Court of Brazoria County
Trial Court Judge: Ben Hardin
Disposition: Reversed and Rendered

Merck & Co., Inc., appeals from a jury verdict in a personal-injury and wrongful-death suit filed by Carol Ernst in which she alleged that ingestion of Vioxx caused the sudden cardiac death of her husband, Bob Ernst. Merck raises four issues in which it challenges the legal and factual sufficiency of the evidence to support the jury’s verdict on causation, strict liability, negligence, malice, and damages. Merck further contends that the trial court erred in instructing the jury and in admitting certain evidence. Finding the evidence to be legally insufficient on the issue of causation, we reverse the trial court’s judgment and render judgment that appellee take nothing.

Thursday, June 5, 2008

BCM Doctor's interlocutory appeal dismissed in medmal suit


Doctor at private university hospital not entitled to invoke immunity available to employees of governmental entities and seek interlocutory appeal in bid to have medical malpractice suit dismissed, First Court of Appeals says (again).

Zimmerman, MD v. Anaya No. 01-07-00570-CV (Tex.App.- Houston [1st Dist.] June 5, 2008)(Bland) (HCLC, interlocutory appeal not authorized, dismissed for want of appellate jurisdiction, interlocutory appeals)

Opinion by Justice Jane Bland

Panel members: Chief Justice Radack, Justices Jennings and Bland

Full case style: Geoffrey Zimmerman, M.D. v. Wendy Gonzalez Anaya, Individually and a/n/f of Christopher Gabriel Hernandez, Deceased, and Jose Hernandez, IndividuallyAppeal from 113th District Court of Harris County

Trial Court Judge: Hon. Patricia Hancock

Disposition: Appeals dismissed for want of appellate jurisdiction

MEMORANDUM OPINION

Wendy Gonzalez Anaya and Jose Hernandez (“the parents”) sued Geoffrey Zimmerman, M.D. for alleged negligence during the delivery of their son, which caused their son to suffer personal injuries and death.

Zimmerman moved for summary judgment on immunity grounds, asserting that, as a resident of Baylor College of Medicine who provided publicly funded health care at Ben Taub Hospital, he is entitled to immunity pursuant to section 101.106 of the Texas Civil Practice and Remedies Code because Baylor qualifies as a governmental unit under section 312.007 of the Texas Health and Safety Code, making him an employee of a state agency for purposes of immunity under the Tort Claims Act.


The parents have moved to dismiss on the ground that section 51.014(a)(5) does not authorize Zimmerman’s appeal. That section provides that “[a] person may appeal from an interlocutory order of a district court, county court at law, or county court 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. R. Civ. P. § 51.014(a)(5).

The parents assert that, because Zimmerman is not an employee or officer of the state or a political subdivision of the state, section 51.014(a)(5) does not apply to his appeal, and no other basis for appellate jurisdiction exists.

Our Court’s recently issued opinion and judgment on rehearing in Klein v. Hernandez controls our disposition of Zimmerman’s appeal. See No. 01-06-00569-CV, 2008 WL 1747479 (Tex. App.—Houston [1st Dist.] Apr. 17, 2008, no pet. h.). In Klein, we held that we lacked jurisdiction over a Baylor resident’s interlocutory appeal of the interlocutory denial of his motion for summary judgment, in which, like Zimmerman, he asserted that section 312.007 of the Texas Health and Safety Code entitles him to claim immunity from liability under the Texas Tort Claims Act.

We expressly held that section 312.007 did notconfer[] upon Klein or Baylor . . . “sovereign immunity,” which must be waived under the Texas Tort Claims Act. . . . [W]e hold that the Legislature’s grant of limited liability to Dr. Klein and Baylor and provision of indemnity for Klein in chapter 312 does not amount to a conferral of “sovereign immunity,” which deprived the trial court of subject matter jurisdiction . . . .Id. at *7.

In applying this holding to section 51.014(a)(5) of the Civil Practice and Remedies Code, we observed that that provision “authorizes a person to appeal from an order that ‘denies a motion for summary judgment based on an assertion of immunity by an individual who is an [actual] officer or employee of the state or a political subdivision of the state.’” Id. (quoting Tex. R. Civ. P. § 51.014(a)(5) (emphasis and brackets in the original)).

Relying solely on section 312.007(a) as grounds for immunity, Zimmerman emphasizes that section 312.007(a) expressly provides that a person in his position is to be 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 . . . .” (quoting Klein, 2008 WL 1747479 at *5) (emphasis added). The immunity conferred by section 101.106 of the Civil Practice and Remedies Code, however, cannot extend beyond the reach of section 312.007(a).

Determining liability is not synonymous with conferring immunity from suit, which the Legislature addresses expressly in section 312.007(b) by incorporating chapter 101 by reference. At the time the Legislature enacted section 312.007(b), it mirrored the then-existing language in section 101.106, which barred an action against defendant upon judgment or settlement of a claim against the governmental unit at the outset of filing suit. Compare Tex. Civ. Prac. & Rem Code. Ann. § 101.106 historical note (Vernon 2005) (observing that before the 2003 amendment, the section provided that “[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”) with Tex. Health & Safety Code Ann. § 312.007(b) (Vernon 2001) (enacted in 1989) (providing that “A judgment in an action or settlement of a claim against a . . . supported medical . . . school bars any action involving the same subject matter by the claimant against an . . . intern [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”). When the Legislature amended section 101.106 to require an election at the outset of filing suit, it did not alter section 312.007(b). See Tex. Civ. Prac. & Rem Code. Ann. § 101.106 (Vernon 2005) (as amended in 2003). Consequently, our holding in Klein, that the language of section 312.007 does not make Baylor the equivalent of a governmental unit for purposes of section 54.014(a)(5) of the Civil Practice and Remedies Code, applies with equal force to Zimmerman’s case. See id. at *7.

Because section 312.007(a) is not an immunity statute and Zimmerman does not meet the requirements of section 312.007(b), we hold that section 51.014(a)(5) of the Civil Practice and Remedies Code does not confer appellate jurisdiction over Zimmerman’s appeal. See id.

Accordingly, without addressing the merits, we dismiss Zimmerman’s appeal for lack of jurisdiction.

Jane Bland

JusticePanel consists of Chief Justice Radack and Justices Jennings and Bland.