William K. Hathaway II, Cheryl Kuder and Cynthia Tucker, Individually and as the Heirs and Surviving Children of Carolyn Eileen Hathaway, Deceased v. Wichita Falls State Hospital and Edward Luke, Jr., D.O.--Appeal from 78th District Court of Wichita County

NO. 12-03-00102-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WILLIAM K. HATHAWAY, II,

CHERYL KUDER AND CYNTHIA TUCKER,

INDIVIDUALLY AND AS THE HEIRS APPEAL FROM THE 78TH

AND SURVIVING CHILDREN OF

CAROLYN EILEEN HATHAWAY,

APPELLANTS

V. JUDICIAL DISTRICT COURT OF

WICHITA FALLS STATE HOSPITAL

AND EDWARD LUKE, JR., D.O., WICHITA COUNTY, TEXAS

APPELLEE

MEMORANDUM OPINION

William K. Hathaway, II, Cheryl Kuder, and Cynthia Tucker, individually and as the heirs and surviving children of Carolyn Eileen Hathaway, deceased ( the Hathaway Heirs ), appeal the trial court s order granting summary judgment in favor of Edward Luke, Jr., D.O. ( Dr. Luke ). In two issues, the Hathaway Heirs contend (1) that the trial court erred in determining that Dr. Luke was protected by governmental immunity, and (2) that he was an employee of North Texas State Hospital, the Wichita Falls Campus ( the Hospital ). We affirm.

Background

The Hathaway Heirs filed suit against the Hospital and Dr. Luke for negligently causing their mother s death. The Hospital filed a plea to the jurisdiction and motion to dismiss claiming governmental immunity. The trial court dismissed the Hathaway Heirs claims against the Hospital with prejudice and severed their negligence action against Dr. Luke.

Subsequently, Dr. Luke moved for summary judgment, alleging that he was entitled to derivative immunity as a Hospital employee. // The trial court granted Dr. Luke s motion for summary judgment and this appeal followed.

Standard of Review

In reviewing a traditional motion for summary judgment, we must apply the following standards established in Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 49 (Tex. 1985):

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true;

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

See id. at 548 49. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either negate at least one essential element of the nonmovant's cause of action, or prove all essential elements of an affirmative defense. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952). The only question is whether or not an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 79 (Tex.1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c).

Governmental Immunity

In their first issue, the Hathaway Heirs contend that Dr. Luke was not entitled to summary judgment because the Hospital s plea to the jurisdiction and motion to dismiss had not been decided on the merits. Dr. Luke responds that the order dismissing the Hathaway Heirs cause of action against the Hospital allowed his claim to also be dismissed with prejudice.

The Texas Tort Claims Act, which ordinarily governs such issues, states, in pertinent part, as follows:

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 them.

Tex. Civ. Prac. & Rem. Code 101.106. In other words, when a claim against a government entity is dismissed based on governmental immunity, section 101.106 requires dismissal of claims involving the same transaction or occurrence that are brought against employees of that government entity. See Dallas Co. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 44 (Tex. 1998). A trial court s order granting a government entity s plea to the jurisdiction on immunity grounds is a judgment for purposes of section 101.106. See Liu v. City of San Antonio, 88 S.W.3d 737, 744 (Tex. App. San Antonio 2002, pet. denied).

The Hathaway Heirs cite Sykes v. Harris Co., 89 S.W.3d 661 (Tex. App. Houston [1st Dist.] 2002), arguing that an order granting a plea to the jurisdiction on behalf of a government entity does not extend immunity to that governmental entity s employees. However, the Texas Supreme Court recently reversed the court of appeals decision in Sykes, holding that a grant of a plea to the jurisdiction based on a claim of government immunity constitutes a final determination on the merits of the matter actually decided. Harris County v. Sykes, No. 02-1014, 2004 WL 1194127, at *4 (Tex. May 28, 2004). The court further held that since the trial court had properly dismissed Sykes s claims against the government entity, the employee of that entity was entitled to derivative immunity under section 101.106. Id. Accordingly, we hold that section 101.106 of the Texas Tort Claims Act applies in the case before us and that summary judgment in favor of Dr. Luke was properly granted. The Hathaway Heirs issue one is overruled.

Doctor s Status as an Employee

In their second issue, the Hathaway Heirs contend that Dr. Luke had not established that he was an employee of the Hospital. Dr. Luke attached an affidavit to his motion for summary judgment stating that he was an employee of the hospital. A properly pleaded affirmative defense, which is supported by uncontroverted summary judgment evidence, may serve as the basis for a summary judgment. See Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991). The Hathaway Heirs failed to raise a fact issue as to whether Dr. Luke was an employee of the Hospital because they did not file an affidavit contesting that designation. See Baubles and Beads v. Luis Vuitton, S.A., 766 S.W.2d 377, 380 (Tex. App. Texarkana 1989, no pet.). We hold that the trial court properly granted summary judgment because the undisputed evidence established that Dr. Luke was an employee of the Hospital. See Dalehite v. Nauta, 79 S.W.3d 243, 245 (Tex. App. Houston [14th Dist.] 2002, pet. denied). The Hathaway Heirs issue number two is overruled.

Conclusion

Having overruled the Hathaway Heirs issues one and two, we affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 23, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)

//

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 23, 2004

NO. 12-03-00102-CV

WILLIAM K. HATHAWAY, II, CHERYL KUDER

AND CYNTHIA TUCKER, INDIVIDUALLY AND AS

THE HEIRS AND SURVIVING CHILDREN OF

CAROLYN EILEEN HATHAWAY,

Appellants

V.

WICHITA FALLS STATE HOSPITAL

AND EDWARD LUKE, JR., D.O.,

Appellee

Appeal from the 78th Judicial Court

of Wichita County, Texas. (Tr.Ct.No. 152,565-B)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that all costs of this appeal are hereby adjudged against the appellants, William K. Hathaway, II, Cheryl Kuder and Cynthia Tucker, Individually and as the Heirs and Surviving Children of Carolyn Eileen Hathaway for which execution may issue, and that this decision be certified to the court below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

THE STATE OF TEXAS

M A N D A T E

TO THE 78TH JUDICIAL DISTRICT COURT OF WICHITA COUNTY, GREETINGS:

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 23rd day of June, 2004, the cause upon appeal to revise or reverse your judgment between

WILLIAM K. HATHAWAY, II, CHERYL KUDER

AND CYNTHIA TUCKER, INDIVIDUALLY AND AS

THE HEIRS AND SURVIVING CHILDREN OF

CAROLYN EILEEN HATHAWAY, Appellants

NO. 12-03-00102-CV and Tr. Ct. Case Number 152,565-B

Opinion by Chief Justice James T. Worthen.

WICHITA FALLS STATE HOSPITAL AND

EDWARD LUKE, JR., D.O., Appellees

was determined; and therein our said Court made its order in these words:

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that all costs of this appeal are hereby adjudged against the appellants, William K. Hathaway, II, Cheryl Kuder and Cynthia Tucker, Individually and as the Heirs and Surviving Children of Carolyn Eileen Hathaway for which execution may issue, and that this decision be certified to the court below for observance.

WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of said Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200_.

CATHY S. LUSK, CLERK

By:_______________________________

Deputy Clerk