                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00183-CV

JACKIE MIERS,
                                                         Appellant
v.

TEXAS A&M UNIVERSITY SYSTEM
HEALTH SCIENCE CENTER D/B/A
BAYLOR COLLEGE OF DENTISTRY &
DR. WILLIAM RALPH PHILLIPS, III, D.D.S.,
                                                         Appellees


                        From the 272nd District Court
                             Brazos County, Texas
                       Trial Court No. 06-000356-CV-272


                                   OPINION


      Jackie Miers appeals two decisions of the trial court that dismissed her claims

against Texas A&M University System Health Science Center d/b/a Baylor College of

Dentistry and William Ralph Phillips, DDS, MD. Miers’s claims were brought pursuant

to the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001 et. seq.

(Vernon 2005). The trial court granted the motion to dismiss Dr. Phillips pursuant to

Texas Civil Practice and Remedies Code Section 101.106. The trial court later granted
Baylor’s motion for summary judgment based on sovereign immunity. Because we find

that the trial court did not err in granting Baylor’s motion for summary judgment

pursuant to Texas Civil Practice and Remedies Code Section 101.021(2), that Miers’s

complaint regarding Phillips being in the paid employment of Baylor may have been

waived but nevertheless we find that Phillips was being paid by Baylor, and that the

trial court did not err in dismissing Phillips because Baylor had the right to control his

work pursuant to Sections 101.002(2) and 101.106(e), we affirm the orders and

ultimately the judgment of the trial court.

Motion for Summary Judgment

       Miers first complains that the trial court erred in granting summary judgment as

to Baylor. We review the grant or denial of a traditional motion for summary judgment

de novo. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005) (citing

Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137 (Tex. 2004)). To be

entitled to summary judgment, the movant must demonstrate that no genuine issues of

material fact exist and that she is entitled to judgment as a matter of law. See TEX. R.

CIV. P. 166a(c). Once the movant satisfies her burden, the burden shifts to the non-

movant to produce evidence sufficient to raise a fact issue. See Walker v. Harris, 924

S.W.2d 375, 377 (Tex. 1996).        In determining whether a fact issue exists, evidence

favorable to the non-movant is taken as true. Am. Tobacco Co. v. Grinnell, 951 S.W.2d

420, 425 (Tex. 1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.

1985)). All doubts will be resolved in favor of the non-movant, and all reasonable

inferences will be indulged in her favor. Id. (citing Nixon, 690 S.W.2d at 549).

Miers v. Texas A&M University System Health Science Center                          Page 2
         Baylor’s motion for summary judgment raises an issue of sovereign immunity

from suit that, if applicable, would deprive the Court of subject-matter jurisdiction. See

Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Subject-

matter jurisdiction is a question of law, which we review de novo. Id. at 226. Likewise,

deciding whether Miers's claims fall under the Tort Claims Act is a matter of statutory

construction, which we also review de novo. In re Forlenza, 140 S.W.3d 373, 376 (Tex.

2004).

Use or Misuse of Tangible Personal Property

         Miers complains that the trial court erred by granting Baylor’s motion for

summary judgment based on the affirmative defense of sovereign immunity because

Baylor waived its immunity pursuant to Texas Civil Practice and Remedies Code

Section 101.021(2). TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (Vernon 2005). Miers

contends that the use or misuse of tangible personal property caused her injury.

Initially, Baylor filed a plea to the jurisdiction on this basis, which the trial court denied

and Baylor did not appeal that decision. Some time thereafter, Baylor filed a traditional

motion for summary judgment alleging that there was no use or misuse of tangible

personal property within the meaning of the Tort Claims Act so as to come within the

waiver of immunity as a matter of law.

         To establish a waiver of sovereign immunity based upon the use or misuse of

non-defective tangible personal property, Miers must allege that the injury was caused

by the use or misuse of tangible personal property by a governmental employee acting

within the scope of his or her employment. Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30,

Miers v. Texas A&M University System Health Science Center                              Page 3
32 (Tex. 1983); Sepulveda v. County of El Paso, 170 S.W.3d 605, 614-15 (Tex. App.—El Paso

2005, pet. denied). "Use" means "to put or bring into action or service; to employ for or

apply to a given purpose." Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583,

588 (Tex. 2001). The usage of the property must have actually caused the injury. Miller,

51 S.W.3d at 588; see San Antonio State Hospital v. Koehler, 981 S.W.2d 32, 35 (Tex.App.—

San Antonio 1998, pet. denied) (use of the property must be a substantial factor in

bringing about the injury). Incidental involvement of the property is insufficient. Dallas

County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998).

Property does not cause injury if it does no more than furnish the condition that makes

injury possible. Bossley, 968 S.W.2d at 343.

       Miers lists several pieces of equipment and dental instruments that she contends

were used or misused within the meaning of the statute to extract her teeth; however,

there is no evidence that it was Phillips’s use or misuse of any of the listed equipment or

dental instruments during the procedure in which her teeth were removed that caused

the injury. To the contrary, there is evidence that Phillips correctly used the equipment

and dental instruments when he removed the teeth. It is entirely and solely the decision

to remove the additional teeth at all that is the source of Phillips’s alleged negligence,

not the manner in which they were removed. Consequently, there is no waiver of

sovereign immunity based on the use or misuse of tangible personal property. See Tex.

Tech. Univ. Health Sciences Ctr. v. Lucero, 234 S.W.3d 158, 169 (Tex. App.—El Paso 2007,

pet. denied) (allegation of misuse of equipment during procedure does not waive



Miers v. Texas A&M University System Health Science Center                           Page 4
immunity when stent placed correctly); see also Turner v. Zellers, 232 S.W.3d 414, 419

(Tex. App.—Dallas 2008, no pet.). We overrule Miers’s first issue.

Motion to Dismiss

       In her second issue, Miers complains that the trial court erred by granting

Phillips’s motion to dismiss pursuant to Texas Civil Practice and Remedies Code §

101.106, which mandates dismissal of a claim filed against an employee when the suit is

filed pursuant to Chapter 101 against both a governmental unit and one of its

employees upon the filing of a motion by the governmental unit. TEX. CIV. PRAC. &

REM. CODE ANN. § 101.106(e) (Vernon 2005).

       The term “employee” is defined in Chapter 101 as “a person, including an officer

or agent, who is in the paid service of a governmental unit by competent authority, but

does not include an independent contractor, an agent or employee of an independent

contractor, or a person who performs tasks the details of which the governmental unit

does not have the legal right to control.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.002(2)

(Vernon 2005).

       Miers contends that Phillips never established as a matter of law that he was an

employee of Baylor because he was not in the paid service of Baylor and because Baylor

did not have the right to control his work. Phillips was paid by BUMC, and his salary,

withholding taxes, and health insurance were reimbursed to Baylor through an

affiliation agreement between BUMC and Baylor. Miers does not contend that her

claims were not brought pursuant to Chapter 101, rendering Section 101.106

inapplicable, but agrees that if Phillips is an employee of Baylor, as defined by the

Miers v. Texas A&M University System Health Science Center                        Page 5
statute, dismissal is appropriate under that section. See Mission Consol. Indep. Sch. Dist.

v. Garcia, 253 S.W.3d 653, 656 (Tex. 2008) (all tort theories, including intentional torts by

employees, encompassed in dismissal for failure to establish waiver of sovereign

immunity); see also Kanlic v. Meyer, 230 S.W.3d 889, 894-95 (Tex. App.—El Paso 2007, pet.

denied).

       Section 101.106(e) provides, "If a suit is filed under this chapter against both a

governmental unit and any of its employees, the employees shall immediately be

dismissed on the filing of a motion by the governmental unit." TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(e) (Vernon 2005).

Paid Service

       Miers contends that because Phillips’s W-2’s for the relevant time periods

indicate that he was paid by BUMC, he has not established as a matter of law that he

was an employee of Baylor. Baylor responded that while Phillips’s salary was paid by

BUMC, they had reimbursed BUMC in full for that salary, and attached to their

pleadings copies of invoices from BUMC to Baylor that affirmatively show that BUMC

billed Baylor in full for Phillips’s salary. Additionally, Phillips provided copies of

letters from Baylor admitting him into their residency program and detailing the dates

and salary he would be receiving while in their program. Phillips believed that he was

in the paid employment of Baylor.            There was also evidence presented that the

agreement between BUMC and Baylor was a cost-sharing arrangement, and that Baylor

would reimburse BUMC for some, but not all, residents working in their facility. The

evidence is, however, undisputed that all of Phillips’s cost of employment was

Miers v. Texas A&M University System Health Science Center                             Page 6
ultimately borne by Baylor. Although the reason for this arrangement between Baylor

and BUMC is not revealed by the record, we believe it is immaterial to our analysis.

        Miers does not identify any authorities in support of her argument that Phillips

did not establish as a matter of law that he was in the paid service of Baylor at the time

of the extraction of her teeth. See TEX. R. APP. P. 38.1(i). Without citations to appropriate

authorities, this argument in support of this portion of Miers’s issue could be treated as

inadequately briefed, and therefore waived. See also Walder v. State, 85 S.W.3d 824, 828

(Tex. App.—Waco 2002, order) (per curiam). We have concluded, however, that based

on the undisputed evidence presented that Baylor established as a matter of law with

no evidence to the contrary having been presented, that Phillips was in the paid service

of Baylor within the meaning of the statute.

Right to Control Work

        Miers contends that Phillips did not establish as a matter of law that Baylor had

the right to control his work. Her argument is that Phillips’s exercise of independent

professional judgment as a treating physician was outside of Baylor’s right of control,

which would thereby exclude him from the statutory definition of "employee." See

Murk v. Scheele, 120 S.W.3d 865, 866 (Tex. 2003). As the Texas Supreme Court stated in

Murk:

        This argument sweeps far too broadly. The Act's definition of "employee"
        does not require that a governmental unit control every detail of a
        person's work. The operator of a motor vehicle, for example, must
        exercise independent judgment, but this does not mean that he or she
        cannot be considered an employee under the Act.                  If it did, a
        governmental unit could never be "liable for . . . injury . . . proximately
        caused by . . . the negligence of an employee . . . arising from the operation

Miers v. Texas A&M University System Health Science Center                               Page 7
       or use of a motor-driven vehicle", even though section 101.021(1) of the
       Act provides for such liability. TEX. CIV. PRAC. & REM. CODE §
       101.021(1)(A). Similarly, a physician whose practice is controlled by a
       governmental unit is not precluded from being an "employee" within the
       meaning of the Act simply because he or she must exercise some
       independent medical judgment.

Murk, 120 S.W.3d at 866.

       Phillips was a resident oral surgeon at Baylor. Phillips’s medical decisions in the

treatment of patients was subject to regimens prescribed by Baylor, faculty supervision

and review, and in some instances, could have been vetoed by his supervisors. The

nature of any practice as a physician requires them to make many medical decisions

using their own professional judgment. However, that necessity does not, by itself,

vitiate Baylor's right to control the details of Phillips’s practice. Murk, 120 S.W.3d at

866. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542, 46 Tex. Sup. Ct. J. 142 (Tex. 2002);

Dalehite v. Nauta, 79 S.W.3d 243, 245-46 (Tex. App.—Houston [14th Dist.] 2002, pet.

denied). While it is undisputed that Phillips made the decision to extract Miers’s teeth

and the procedure was solely his judgment call, his supervisory physicians were

available if they were needed to assist or if Phillips had asked them. Further, Baylor

had the right to stop a procedure (if medically safe to do so) if it was believed that

Phillips was not doing something properly; and ultimately could remove Phillips from

a procedure if necessary. Baylor also had the right to remove Phillips from the program

if they felt it was appropriate to do so. The trial court did not err in its determination

that Baylor had the right to control Phillips’s actions. We overrule Miers’s second issue.




Miers v. Texas A&M University System Health Science Center                            Page 8
Conclusion

       We find that the trial court did not err in granting Baylor’s motion for summary

judgment dismissing Baylor on the basis of sovereign immunity. We find that the trial

court did not err in determining that Phillips was an employee of Baylor within the

meaning of the Tort Claims Act and thus did not err in granting the motion to dismiss

Phillips. Accordingly, we affirm the final judgment of the trial court.




                                             TOM GRAY
                                             Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 30, 2009
[CV06]




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