Reverse and Render; Opinion Filed August 6, 2015.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00781-CV

                     JERRY A. POWELL, M.D., Appellant
                                   V.
            ERIC KNIPP AND LAURA KNIPP, INDIVIDUALLY AND AS
         NEXT FRIEND OF THE MINOR, JAMES HELMUT KNIPP, Appellees

                       On Appeal from the County Court at Law No. 5
                                   Dallas County, Texas
                           Trial Court Cause No. CC-13-02581-E

                                         OPINION
                            Before Justices Bridges, Lang, and Evans
                                    Opinion by Justice Evans
       This is an interlocutory appeal from the trial court’s order denying a government doctor’s

motion for summary judgment seeking the dismissal of a medical negligence claim against him

under section 101.106(f) of the Texas Tort Claims Act.          Eric Knipp and Laura Knipp,

individually and as next friend of the minor, James, assert the borrowed employee doctrine

precludes summary judgment.         Because we conclude the summary judgment evidence

conclusively established the doctor’s right to dismissal under section 101.106(f), we reverse and

render partial judgment as to the negligence claim.

                                       BACKGROUND

       Jerry A. Powell, M.D. is a radiologist and a professor of radiology and was so employed

in February 2011 by University of Texas Southwestern Medical Center. Powell’s full-time
professorship with UTSWMC was his only source of salary and retirement benefits for the

medical care and teaching services he provided. Powell provided health care to patients of

Children’s Medical Center pursuant to Children’s agreement with UTSWMC. The contract

between UTSWMC and Children’s provides that Powell was not employed by, paid by, or

subject to the control of Children’s, but his health care services were provided to Children’s

patients at Children’s facilities.

        In late February 2011, Eric and Laura Knipp brought their son, James, to Children’s

emergency room where he was seen by Doctor William J. Morrissey for a cough and

congestion.1 Morrissey ordered a radiological study that was read by a doctor in residence,

Gregory Paul King. Powell supervised King but was not at the hospital in the middle of the

night when the events occurred. King detected indication of an old, healed rib fracture consistent

with child abuse on the radiographic film. Morrissey sought the Knipps’ consent for a full

skeletal radiological exam to observe any indications of trauma or abuse. The Knipps reluctantly

gave their consent. The additional radiological studies were completed yielding negative results

for trauma or abuse, so the Knipps left with James. The Knipps allege their consent was

obtained by Morrissey’s promise that if the full skeletal radiological exam was negative for

indications of trauma or abuse, no report would be made to child protective services.

Notwithstanding the test results, a social worker at Children’s reported an allegation of potential

abuse of James to child protective services.

        A few days later, a different doctor called to inform the Knipps that King had misread a

congenital variant or defect as a rib fracture and that Children’s medical records for James would

be corrected regarding the reading of the film. When the Knipps obtained James’s medical

    1
       The factual summary regarding the treatment of the Knipps’ son is based on the Knipps’ allegations in their
petition. The facts regarding Powell are summarized from his motion for summary judgment and the Knipps’
response.


                                                      –2–
records, the interpretation of the radiological film did not appear to be clarified. Powell had

signed the reports at issue. The Knipps continued to be concerned about the status of the child

protective service’s records regarding James. The Knipps do not allege they have ever been

contacted by child protective services or that child protective services ever investigated the

report from Children’s.

       The Knipps filed suit against Children’s, Morrissey, Powell, and King. The Knipps

claimed Powell was a borrowed servant of Children’s and was professionally negligent which

proximately caused them injuries and damages. In addition to unspecified damages, the Knipps

pleaded for declaratory judgment relief. Powell filed an answer subject to a motion to dismiss.

In his motion to dismiss, Powell alleged that because of his full-time employment with

UTSWMC, he could not be sued individually. He asserted that pursuant to section 101.106(f) of

the Texas Tort Claims Act, the Knipps had thirty days to add UTSWMC and must dismiss

Powell from the lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011).

The Knipps did not dismiss Powell or add UTSWMC and, for reasons not apparent from the

record, the trial court did not rule on Powell’s motion to dismiss.

       Three months later, Powell filed a motion for summary judgment on the same basis as his

motion to dismiss. Powell attached his affidavit to the motion in which he stated the facts about

his employment with UTSWMC and lack of employment with Children’s. Powell supported his

affidavit with his 2011 IRS form W-2 showing he received salary and retirement plan

contributions from UTSWMC and his Memorandum of Appointment with UTSWMC showing

he was an assistant professor in radiology for “100%” of his time for the fiscal year September 1,

2010, through August 31, 2011. Also attached was a page from a contractual document he

signed providing that other than exceptions not relevant here, all professional income he earned

from a source other than UTSWMC was assigned to the “Institutional Trust Fund.” Powell also

                                                –3–
supported his motion for summary judgment with an affidavit from a UTSWMC human

resources supervisor testifying that Powell was a full-time employee of UTSWMC during the

relevant time.

       The Knipps filed an amended petition in which they alleged that Powell was a borrowed

employee of, and under the control of, Children’s. A few days later, the Knipps filed their

response to Powell’s motion for summary judgment arguing that Powell was a borrowed

employee of Children’s such that Powell was not a governmental employee within the meaning

of the Act’s definition of employee. The trial court denied Powell’s motion and he perfected this

interlocutory appeal.    See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011)

(recognizing jurisdiction for interlocutory appeal brought by government employee-doctor for

denial of motion for summary judgment based on section 101.106(f)).

                                          ANALYSIS

       A.        Applicable Law

                 1. Standard of Review

       We review an appeal from summary judgment de novo. See Cantey Hanger, LLP v.

Byrd, No. 13-0861, 2015 WL 3976267, at *2 (Tex. June 26, 2015). “By moving for summary

judgment on section 101.106(f), defendants were asserting claims of governmental immunity.”

Franka, 332 S.W.3d at 371 n.9. A defendant moving for summary judgment on the affirmative

defense of governmental employee sovereign immunity under section 101.106 must conclusively

establish every element of that affirmative defense. See Welch v. Milton, 185 S.W.3d 586, 593

(Tex. App.—Dallas 2006, pet. denied). If the movant conclusively establishes the affirmative

defense, the burden of production shifts to the nonmovant to raise a disputed fact issue on either

an element of the movant’s affirmative defense or an exception to that affirmative defense. See

Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex. App.—Dallas 2012, pet. denied).                To

                                               –4–
determine if the nonmovant raises a fact issue, we review the evidence in the light most

favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so and

disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson,

168 S.W.3d 802, 827 (Tex. 2005).

              2. Dismissal Pursuant to Section 101.106(f)

       We analyze the application of section 101.106(f) to the claims in a lawsuit on a claim-by-

claim basis. See Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411, 416 n.10

(Tex. 2015) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex.

2008)). In order to obtain summary judgment pursuant to section 101.106(f), governmental

employees must conclusively prove: (1) they are employees of a governmental unit, (2) the

claims, if brought against their governmental employer, would fall within the ambit of the Act,

(3) the claims against them are based on conduct generally in the scope of their governmental

employment, and (4) the employees moved to substitute their governmental employer and to be

dismissed. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Franka, 332 S.W.3d at 385

(“[W]e hold that for section 101.106(f), suit ‘could have been brought’ under the Act against the

government regardless of whether the Act waives immunity from suit.”); see also Cannon, 453

S.W.3d at 416 (two elements of section 101.106(e)). To obtain dismissal, the governmental

employee is not required to prove all the elements of an immunity defense. See Franka, 332

S.W.3d at 384–85 (history of amendments to Federal Tort Claims Act and Texas Tort Claims

Act demonstrates substitution of governmental employer and dismissal of employee do not

require proof conduct was discretionary or other elements of official immunity; just that conduct

is within general scope of governmental employment). “Under the Texas Tort Claims Act, a

person is not an employee of a governmental unit if the person performs tasks the details of

which the governmental unit does not have the legal right to control.” Murk v. Scheele, 120

                                              –5–
S.W.3d 865, 866 (Tex. 2003) (internal quotation marks omitted). That is because “employee” is

defined in the Act as “a person . . . who is in the paid service of a governmental unit by

competent authority, but does not include . . . 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. § 101.001(2) (West Supp. 2014) (emphasis added).

        B.       UTSWMC’s Legal Right to Control Powell is Dispositive Issue

        First, we analyze the Knipps’ tort claim against Powell. See Cannon, 453 S.W.3d at 416

n.10 (governmental employee’s entitlement to dismissal pursuant to section 101.106 properly

analyzed on a claim-by-claim basis).

                 1. Negligence Claim

        Powell moved for summary judgment on his right to dismissal under section 101.106(f)

specifically citing the allegations against him that the Knipps pleaded relative to their claim for

negligence.2 In their amended petition, the Knipps added a section entitled, “Ultra Vires,” in

which they repeated their theory that because Powell was a borrowed employee of Children’s,

their claim is not brought under the Act. They further asserted that Powell does not have

immunity, but did not seek any relief beyond recognition of their theory. In the trial court and on

appeal, the Knipps challenge only the third element of section 101.106(f) as to their negligence

claim. Thus, our analysis will likewise focus on that element, namely, by whom Powell was

employed when he provided health care to James.

        Powell’s evidence is uncontroverted that he was “in the paid service” of UTSWMC and

that all of his professional work, including his provision of health care to James, was within the

scope of his contractual agreement with UTSWMC. As a matter of law, UTSWMC is a

    2
      The Knipps also pleaded a claim for gross negligence alternately labeled as an intentional tort. In their
amended petition, the Knipps omitted these allegations thereby nonsuiting such claims. See FKM P’ship, Ltd. v. Bd.
of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 632–33 (Tex. 2008).


                                                      –6–
“governmental unit” within the meaning of section 101.001(3) of the Act. See Franka, 332

S.W.3d at 373 n.15 (recognizing UTSWMC as a governmental unit under the Act); Univ. of Tex.

Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 354 n.5 (Tex. 2004) (same); see also

TEX. EDUC. CODE ANN. § 65.02(a)(7) (West Supp. 2015) (University of Texas System includes

the University of Texas Southwestern Medical Center at Dallas and its specified components);

id. § 74.101 (West 2002) (“The University of Texas Southwestern Medical Center at Dallas is a

component institution of The University of Texas System under the management and control of

the board of regents of The University of Texas System.”).

       Powell’s signed Memorandum of Appointment with UTSWMC provided that his

appointment was “subject to the provisions of the Rules and Regulations of the Board of Regents

of the University of Texas System, Regental and UT System policies, and the policies and

procedures” of UTSWMC. The supreme court has concluded that medical faculty at other

branches of the UT system who are subject to UT’s regimens and review are governmental

employees when the health care they provide is through another health care entity. Murk, 120

S.W.3d at 867. We conclude Powell met his summary judgment burden by proving his provision

of health care to James was in the scope of his employment for UTSWMC, a governmental

entity. See Welch, 185 S.W.3d at 593.

       The Knipps contend their evidence raised a fact issue regarding Powell’s status as a

governmental employee. See Cunningham, 365 S.W.3d at 186. They argue Children’s borrowed

Powell from UTSWMC because Children’s controlled Powell’s provision of health care to

James. Therefore, according to the Knipps, Powell is not covered by the Act. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.001(2). In support of their argument, the Knipps rely on a

supreme court opinion deciding that, under some circumstances, a doctor can be a borrowed

employee. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 543 (Tex. 2002).

                                              –7–
        A regular employee of an employer becomes a borrowed employee of another employer

as to a task or activity for purposes of vicarious liability if the other employer has the right to

direct and control the employee with respect to the details of the particular work at issue. See

Anthony Equip. Corp. v. Irwin Steel Erectors, Inc., 115 S.W.3d 191, 198–99 (Tex. App.—Dallas

2003, pet. dism’d). Which employer has the right to control the work or activity at issue

determines whether an employee is a borrowed employee. See Wolff, 94 S.W.3d at 542 (“We

have even gone so far as to say that the right to control remains the ‘supreme test’ for whether

the master-servant relationship exists and thus whether the rule of vicarious liability applies.”)

(internal quotation marks omitted); Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560, 565

(Tex. App.—Houston [1st Dist.] 2006, no pet.) (“The test is whether the borrowing employer has

the right to control the progress, details, and methods of operation of the work.”).

        The Knipps’ theory assumes that if Powell was Children’s borrowed employee, his status

as a governmental employee is negated as to the same conduct. Powell responds that a borrowed

employee can be the employee of both employers and that all his work was within the scope of

his employment for UTSWMC. Citing White v. Liberty Eylau School District, 880 S.W.2d 156

(Tex. App.—Texarkana 1994, writ denied), Powell argues the borrowed employee doctrine is

“irrelevant” to his employment status under the Act.

        In White, a teacher employed by a school district also worked as a bus driver for a

separate entity, the Bowie County School Transportation Department. While driving a bus, the

teacher collided with the Whites’ vehicle, and they sued for damages. The school district moved

for summary judgment on the grounds that it could not be liable under section 101.021 of the

Act3 because the teacher was not its employee while driving the bus under the Act’s definition of


    3
     This section codifies the tort doctrine of respondeat superior liability with limitations. See TEX. CIV. PRAC. &
REM. CODE ANN. § 101.021 (West 2011).


                                                        –8–
employee—the same definition that applies to Powell.4                         The trial court granted summary

judgment to the school district, but the court of appeals reversed. The appellate court reasoned

that a person may function as the employee of two employers at the same time and as to the same

conduct, “if the service to one does not involve an abandonment of the service to the other.” Id.

at 159 (quoting RESTATEMENT (SECOND) OF AGENCY § 226 (AM. LAW INST. 1958)). The court of

appeals determined there was summary judgment evidence that supported the plaintiffs’ theory

that the teacher was under the control of the school district even while she drove the bus under

the control of the Bowie County School Transportation Department within the meaning of the

Act’s definition of employee.5

           We decide based on White and the Restatement of Agency, that to negate Powell’s status

as an employee under section 101.001(2), the Knipps’ evidence must raise a fact issue that the

borrowing employer, Children’s, controls Powell to the exclusion of UTSWMC’s legal right to

control Powell. Only if the governmental entity’s control of its employee is negated would a

borrowed employee come within the exception clause in section 101.001(2). See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.001(2). We review the summary judgment record to determine

whether the Knipps raised a fact issue that Powell was a borrowed employee of Children’s to the

extent that UTSWMC was deprived of the legal right to control Powell.

           There is a presumption that an employee remains in his general employment as long as

the employee is performing the work entrusted to him by the general employer, absent evidence

    4
        The definition applicable to the White case was located in a different subsection but is essentially the same:
                    [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.
White, 880 S.W.2d at 159 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(1) (Vernon 1986)).
    5
      A jury subsequently found the teacher was not an employee of the school district in her conduct of driving the
bus, a result affirmed by the court of appeals. See White v. Liberty Eylau Indep. Sch. Dist., 920 S.W.2d 809 (Tex.
App.—Texarkana 1996, writ denied).


                                                           –9–
to the contrary.   See Anthony Equip. Corp., 115 S.W.3d at 201.             The supreme court has

determined that a factor is a contract between the two employers allocating the right to control

the employee, but that is not controlling. Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex.

1992). In the absence of evidence of control by the second employer or that the contract is a

sham, the contract between two employers generally is determinative of the issue of control of

the employee and the issue of borrowed employee. Id.; see Producers Chem. Co. v. McKay, 366

S.W.2d 220, 226 (Tex. 1963) (“When a contract, written or oral, between two employers

expressly provides that one or the other shall have right of control, solution of the question is

relatively simple.”); cf. Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911

(Tex. App.—Fort Worth 2009, pet. denied) (“A contract expressly providing that a person is an

independent contractor is determinative of the relationship absent evidence that the contract is a

mere sham or subterfuge designed to conceal the true legal status of the parties or that the

contract has been modified by a subsequent agreement between the parties.”); Bell v. VPSI, Inc.,

205 S.W.3d 706, 713 (Tex. App.—Fort Worth 2006, no pet.) (“A contract between the parties

that establishes an independent contractor relationship is determinative of the parties’

relationship in absence of extrinsic evidence indicating that the contract was a ‘sham or cloak’

designed to conceal the true legal relationship of the parties or that despite the contract terms, the

true agreement vested the right of control in the principal.”).

       In St. Joseph Hospital v. Wolff, the supreme court examined the issue of borrowed

employee status in the context of medical care by a physician. Wolff, 94 S.W.3d at 513. The

court primarily relied on the contract between the hospital and teaching foundation but took into

account the actual conduct of which one controlled the resident physician. Id. at 540–44.

Further, the court recognized that a contractual provision allocating the right to control an

employee can be dispositive where there is no conflicting evidence as to which entity had the

                                                –10–
right to control the employee’s task, but where the evidence conflicts with the contract, a jury

must decide the disputed factual issue. Id. at 544 n.92 (citing Perez, 842 S.W.2d at 630).

Accordingly, we begin our consideration of the Knipps’ arguments by reviewing the contractual

provisions regarding control of an employee, recognizing them generally as a determinative

factor, but not to the exclusion of the other evidence in the record considered later.

        The agreement between UTSWMC and Children’s6 provides that UTSWMC and its

doctors are independent of Children’s and are independent contractors, not employees, of

Children’s. For example, the agreement provides in section 10.4 that the UTSWMC physicians

will make their health care decisions for patients completely independent of Children’s:

        This Agreement contemplates nothing more than the delivery of certain services
        by UTSW through its Pediatric Faculty. UTSW and its Pediatric Faculty shall
        remain entirely independent of Children’s as to the diagnosis and treatment of
        patients and all other medical, professional, and ethical affairs of UTSW and its
        Pediatric Faculty.

(Emphasis added). The agreement also provides in section 10.5 that the UTSWMC physicians

are independent contractors and not employees of Children’s:

        Independent Contractor Status. In performing its responsibilities pursuant to this
        Agreement, it is understood and agreed that UTSW and its Pediatric Faculty are at
        all times acting as independent contractors and that they are not partners, joint-
        venturers, or employees of Children’s. The interest of Children’s is to have the
        services contemplated by this Agreement performed and rendered in a competent,
        efficient, and satisfactory manner. It is expressly agreed that UTSW and its
        Pediatric Faculty will not for any purpose be deemed to be agents, ostensible or
        apparent agents, or servants of Children’s and that this Agreement does not create
        any joint venture, joint enterprise, or partnership relationship between UTSW and
        its Pediatric Faculty and Children’s, and the Parties agree to take any action that
        may be reasonably necessary to inform the public and patients of Children’s that
        no such relationship exists.



    6
      The agreement on its face indicates it is for the one-year period ending August 31, 2010. The agreement
provides that it “shall automatically renew for additional one-year terms unless either Party provides to the other
Party written notice of termination at least one year prior to the expiration of the initial term or any subsequent
term.” The parties treat the agreement as applicable to February 2011, and neither has provided evidence of notice
of termination by the contracting parties.


                                                      –11–
The agreement provides that UTSWMC is obligated to pay its physicians their employment

compensation and benefits while Children’s is expressly not obligated to pay any physician for

employment compensation or benefits. Generally, Children’s and UTSWMC agreed Children’s

would not compensate UTSWMC for its physicians’ professional services to patients as each

party billed and collected for their own health care services provided to patients. But Children’s

agreed to pay UTSWMC for two types of work: (1) administrative work for participation in

certain committees, and (2) undercompensated health care related to physicians providing full-

time coverage for Children’s hospitals and applicable to certain types of Medicaid-covered

patients or billings. The health care provided to James did not fall into either of these two

categories.   By these terms, Children’s agreement with UTSWMC clearly provides that

physicians such as Powell remain employees of UTSWMC while rendering health care at

Children’s to Children’s patients, the physicians make their health care decisions completely

independent of Children’s, and Children’s, UTSWMC, and the physicians may take any

reasonable action to inform the public.

       James’s medical records from Children’s contain this disclosure:

                                 NOTICE TO ALL PATIENTS

       The physicians who treat you/your child at Children’s Medical Center
       (“Children’s”) are not employees or agents of Children’s. They are either
       (i) independent physicians engaged in the private practice of medicine who have
       staff privileges at Children’s; (ii) independent physicians who are independent
       contractors and have staff privileges at Children’s; (iii) physicians employed by
       the University of Texas Southwestern Medical Center or another institution who
       have staff privileges at Children’s; or (iv) physicians participating in the care of
       patients as part of a post-graduate medical education program. As a result, you
       will be separately billed by the physicians for their services.

                                              ***

       IMPORTANT NOTICE: Patient acknowledges that a physician or other health
       care provider who may provide services to the Patient while at Children’s may not
       be a participating provider with the same Health Plans as Children’s. As a result,
       these physicians’ services may not be covered by Patient’s Health Plan (or may be

                                              –12–
       considered Out-of-Network). You may request information directly from the
       physician concerning the Health Plans with which the physician contracts.

       I hereby acknowledge that I have read and I understand the above.

       /s/ Eric Knipp 2-19-11

(Emphasis added). The above disclosure informed the Knipps that the physicians treating James

at Children’s were not employees or agents of Children’s. This is the issue before us on this

interlocutory appeal and it was clearly disclosed to the Knipps at commencement of James’s

treatment.

       On the record before us, the conduct of UTSWMC and Children’s comported with their

agreement. There is no evidence in the record Powell obtained any directive from anyone at

Children’s as to how Powell was to perform his radiological tasks pertaining to James. As

permitted in the last sentence of the “Independent Contractor Status” clause of the Agreement,

Children’s informed the Knipps that all the treating physicians at Children’s were not employees

of Children’s and, further, that some physicians may be employed by UTSWMC with privileges

to practice at Children’s, which was the arrangement pertaining to Powell. Children’s also

informed the Knipps that because all the physicians were independent of Children’s, the

physicians may bill separately from Children’s and might not be covered on the Knipps’ health

insurance in the same way as Children’s. For James’s care, the record indicates Powell billed for

his professional services independently of Children’s billings. All of this conduct by Powell,

UTSWMC, and Children’s was consistent with UTSWMC’s agreement with Children’s that

Powell remained UTSWMC’s employee and was not Children’s employee when providing

health care to James thereby indicating the agreement was not a sham or a subterfuge.

       The Knipps contest the meaning and significance of these contractual provisions. First,

the Knipps argue the sections of the agreement quoted above “do not state that UTSWMC has

control over Dr. Powell’s work at Children’s, nor do they state that Children’s does not have the

                                              –13–
right to control Dr. Powell’s work at Children’s.” We disagree. Section 10.4 clearly provides,

“UTSW and its Pediatric Faculty shall remain entirely independent of Children’s as to the

diagnosis and treatment of patients . . . .” Section 10.5 provides in part, “UTSW and its Pediatric

Faculty are at all times acting as independent contractors and that they are not partners, joint-

venturers, or employees of Children’s.” These provisions clearly establish the faculty physicians

such as Powell are independent of Children’s in their diagnosis and treatment of patients. The

subject of the allegation against Powell pertains to the alleged misdiagnosis of a congenital

condition as a healed bone fracture possibly indicative of family violence. According to the

agreement, Powell’s diagnosis was “entirely independent of Children’s” which goes to the

central issue regarding whether Children’s controlled Powell in making his assessment and

diagnosis.

        The Knipps also contend the signed disclosure is not determinative of who controlled

Powell. Powell relies on the disclosure only to controvert Laura Knipp’s contention that she was

led to believe the doctors were employees of Children’s and was never told they were not

employees of Children’s. We reference the disclosure merely because it is consistent with the

agreement. Moreover, the disclosure’s content directly negates “subterfuge designed to conceal

the true legal status of the parties . . . .” Farlow, 284 S.W.3d at 911; Bell, 205 S.W.3d at 713.

Although calling the document a signed consent, Powell does not argue, and we do not conclude,

the signed disclosure in and of itself binds the Knipps to Children’s agreement with UTSWMC.

Rather, it is direct evidence that Children’s and UTSWMC were not perpetrating a sham or

subterfuge by the employment arrangement involving UTSWMC’s doctors that work at

Children’s facilities.

        The Knipps make a series of arguments that Children’s controlled Powell’s health care of

James. First, the Knipps argue that Powell’s supervision of King, an employee of Children’s,

                                              –14–
creates a genuine issue of material fact whether Children’s had the legal right to control Powell’s

health care of James. The Knipps’ argument inverts the test for borrowed employee. Wolff, 94

S.W.3d at 537.     In Wolff, the supreme court reaffirmed the borrowed employee doctrine

summarizing that the person whose work is controlled becomes the borrowed employee of the

person or employer who exercised the control. Id. (“‘One who would otherwise be in the general

employment of one employer is a borrowed employee of another employer if such other

employer or his agents have the right to direct and control the details of the particular work

inquired about.’”) (quoting STATE BAR     OF   TEXAS, PATTERN JURY CHARGES––MALPRACTICE,

PREMISES & PRODUCTS 52.2 cmt. (1997)). The Wolff court decided that because “the Foundation

or its [supervising physician] had the right to direct and control the details of [the resident’s]

medical treatment” of the plaintiff, then “regardless of any evidence that [the resident] was the

general or regular employee of [the hospital in which treatment occurred and which employed

the resident], he was acting as the borrowed employee of the Foundation as a matter of law when

he treated [the plaintiff].” Id. at 542. If the premise of the Knipps’ argument is correct—that

Powell controlled King—then King would be a borrowed employee of UTSWMC, but Powell

would not thereby become a borrowed employee of Children’s. See id. We conclude there is no

merit in this argument advanced by the Knipps and it does not present a disputed issue of fact.

       The Knipps also argue a fact issue is created regarding Children’s control of Powell

because Children’s scheduled Powell to work at the time James entered Children’s and owned

and controlled the facility, equipment, and computer software used by Powell to provide health

care to James. The Knipps further argue Powell’s notes appear under Children’s letterhead.

Finally, the Knipps assert that UTSWMC had agreed its pediatric faculty would timely make

medical records and reports pertaining to their treatment of Children’s patients using Children’s

software and facilities and such records would remain Children’s property, unless otherwise

                                               –15–
provided by law. The Knipps point out it was in these electronic medical records that the

diagnosis of rib fracture was documented.        They further assert Powell had an office at

Children’s, the Texas Medical Board Website lists Powell’s primary practice address at

Children’s address, Powell used Children’s reading room, and wore a lab coat and badge that had

Children’s name. The Knipps note that Powell’s practice of medicine at Children’s physical

building, use of Children’s equipment, software, and all the assets necessary to practice pediatric

radiology at Children’s, were done pursuant to the agreement between Children’s and

UTSWMC. But these facts do not contradict the evidence of Children’s lack of control of the

details of Powell’s practice of medicine pursuant to the agreement.           We conclude these

arguments lack merit.

       The Knipps next argue a fact issue regarding control of Powell is created because

Children’s billed for Powell’s services and “ultimately” paid Powell’s salary.        Within this

argument, the Knipps assert that Powell’s address on the Knipps’ health insurance company’s

explanation of benefits (EOBs) is the same as Children’s address and that creates a fact issue

regarding whether Children’s billed for Powell’s services. The Knipps rely on EOBs pertaining

to services rendered to a member of the Knipps’ household. The first EOB lists Powell as the

provider at Children’s street address, his tax ID, the insurer’s plan ID number for Powell, his

type (“Practitioner”), his specialty (“Pediatric Radiology”), and charges for health care services.

A different EOB relied upon by the Knipps for Children’s address identifies Children’s as a

different provider with a different tax ID, different insurer’s plan ID number, different type

(“Facility”), different specialty (“Acute Care General”), and different charges. These documents

are direct evidence that Powell and Children’s billed separately for their treatment of James. It

was undisputed the health care provided to James occurred at Children’s. We do not agree such

information indicates Children’s billed for Powell’s services.

                                               –16–
       The Knipps also assert Children’s “ultimately” paid Powell’s salary, creating a fact issue

about Children’s control of Powell. The Knipps do not cite any authority, and we have found

none, that considered compensation between the two employers attributable in some way to the

benefit of the work received from the alleged borrowed employee in analyzing which employer

controlled the employee. Nor do the Knipps explain how such transaction resulted in Children’s

controlling the details of Powell’s work. We decide the Knipps’ arguments about compensation

do not raise a genuine issue of material fact regarding their theory that Children’s controlled

Powell.

       The Knipps argue Powell’s service on certain Children’s committees called “Medical

Leadership Positions” also raises a fact issue as to whether Powell was an employee of

Children’s. They contend UTSWMC was compensated by Children’s for such service based on

the individual doctor’s base salary plus incentives.       The Knipps also argue the agreement

authorized Children’s to remove any medical leader.

       The agreement between Children’s and UTSWMC provides that UTSWMC was

obligated to provide doctors who would serve on various joint-entity committees. The doctor

would do so as part of their employment for UTSWMC. For example, the agreement provides

that the quality committees of Children’s and UTSWMC may form a joint quality committee

with which UTSWMC agreed its physicians would comply and participate by providing quality

data and working together to improve quality. The Knipps do not explain how Powell’s service

on various administrative committees pursuant to the agreement resulted in Children’s

controlling the details of Powell’s provision of health care to James. Powell’s committee service

is consistent with the agreement. More importantly, Powell’s service on any committee is not

the subject of this health care liability suit; rather it is the health care Powell provided to James

that the Knipps must show Children’s controlled. We therefore reject the Knipps’ argument that

                                               –17–
Powell’s service on administrative and quality care committees demonstrates Children’s control

over Powell’s health care provided to James.

        The Knipps also contend Children’s controlled the quality of Powell’s work. To support

their argument, the Knipps rely on certain provisions in section 9 of the agreement between

Children’s and UTSWMC in which UTSWMC agreed in section 9.1 that—

        UTSW . . . and all of its physicians and Medical Leadership Positions will comply
        with all applicable laws and regulations, accreditation standards, certification
        requirements, Children’s Medical Staff Constitution, Rules and Regulations,
        Children’s policies and procedures, and performance standards of The Joint
        Commission.

The Knipps also refer to provisions in section 9.2 in which UTSWMC further agreed—

        UTSW . . . will participate in Children’s quality program, comply with Children’s
        utilization review policies and guidelines, and ensure that its employed physicians
        participate in committees described in Children’s medical staff bylaws.

After citing these provisions, the Knipps make a one-sentence argument: “Thus, Dr. Powell’s

treatment standard and methods were controlled by Children’s Medical Center’s rules,

regulations, and performance standards.”7 The Knipps’ argument does not explain how Powell’s

compliance with certain standards creates a fact issue regarding whether Children’s controlled

the details of Powell’s health care provided to James. UTSWMC doctors, including Powell,

participated on the quality of care committees and programs at Children’s as part of their

employment by UTSWMC. The Knipps do not supply the content of the Children’s Medical

Staff Constitution or explain how Powell’s compliance with it demonstrates Children’s

controlled the details of Powell’s provision of health care to James. We conclude Powell’s,

UTSWMC’s, and Children’s conduct is consistent with Children’s and UTSWMC’s agreement


    7
      The Knipps add one sentence after this statement: “And more specifically, and most importantly, the very
diagnosis at issue, the erroneous diagnosis of ‘rib fracture,’ was inserted into Dr. Powell’s report by Children’s.”
We have already resolved the Knipps’ earlier argument about the software into which UTSWMC’s doctors entered
notes and diagnoses and do not understand how this sentence relates to the Knipps’ compliance-with-standards
argument. We decide this presents nothing for our review.


                                                       –18–
and does not create a genuine issue of material fact regarding Children’s control of the details of

Powell’s provision of health care to James.

        The Knipps contend Children’s controlled Powell by controlling patient discharges and

providing an incentive to UTSWMC if its doctors discharged patients by 9:00 a.m. But there is

no showing that the document relied upon by the Knipps applies to Powell’s pediatric

radiological care of James,8 and nothing in the record shows that Powell had anything to do with

when James’s medical treatment in the emergency room was complete. The Knipps’ argument is

essentially that Children’s offered an incentive for an end time to Powell’s work, but even setting

a deadline for finishing work as a matter of law does not create a fact issue regarding whether

Powell was a borrowed employee. See Producers Chem. Co., 366 S.W.2d at 226 (trial court did

not err in refusing borrowed employee issue in jury charge because “[m]ere directions given to

[alleged borrowed employee] as to where to hookup, when to start and when to shut down the

compressor in coordinating the work of all men and machinery on the project toward the ultimate

object of unloading the hole does not raise the issue that right of control of [alleged borrowed

employee] in the manner of performing his work had been transferred from” general employer to

alleged borrowing employer); Anthony Equip. Corp., 115 S.W.3d at 203 (as a matter of law

“‘mere directions’ to [alleged borrowed employee] regarding where to place the crane and when

to start and stop the crane during the truss lift in coordinating the two cranes in the truss lift” was

no evidence of control). Even if the incentivized deadline applied to Powell, we conclude

nothing about the program or a 9:00 a.m. target deadline for Powell’s review of the radiographic

images of James raises a fact issue about whether Children’s controlled Powell.




    8
     The record is not clear that the document relied upon by the Knipps pertains to patients treated in Children’s
emergency room who were never admitted to the hospital where they would occupy a bed.


                                                      –19–
         Having reviewed all of the summary judgment record, we conclude the Knipps failed to

raise a genuine issue of material fact on the issue of whether Children’s controlled Powell’s

provision of health care to James.              Powell, therefore, established as a matter of law his

entitlement to dismissal regarding the Knipps’ claim for negligence.

                  2. Declaratory Judgment Claims

         We begin by noting Powell did not address the declaratory judgment allegations in his

opening brief on appeal. See TEX. R. APP. P. 38.1(f) (“brief must state concisely all issues or

points presented for review”). He first raised the issue in his reply brief. We liberally construe

issues on appeal, but that does not include creating arguments that could have been raised in the

opening brief but were not. See Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790,

802–03 (Tex. App.—Dallas 2013, no pet.). Issues raised for the first time in a reply brief are

ordinarily waived and may not be considered by an appellate court. Id.

         Further, Powell never challenged the declaratory judgment claims in his motion for

summary judgment. Our review of the record reveals Powell never mentioned or referred to the

declaratory judgment relief in his motion, nor did he assert the scope of the Act encompassed

declaratory judgment claims.9 As a result, we conclude the motion for summary judgment did

not include a ground challenging the declaratory judgment claims, so the trial court’s summary

judgment order contains no relief or ruling regarding the Knipps’ declaratory judgment claims.

    9
        Powell’s consistent reference throughout his motion is to the Knipps’ negligence claim. Not until Powell’s
summary judgment reply in the trial court did he mention the Knipps’ declaratory judgment claims and argue they
fell within the scope of the Texas Tort Claims Act and Powell’s right to be dismissed pursuant to section 101.106(f).
    A summary judgment can be granted only on the grounds stated in the motion. See McConnell v. Southside
Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“a motion for summary judgment must itself expressly present
the grounds upon which it is made”); Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919, 923 (Tex. App.—Dallas
2009, no pet.) (court does not “read between the lines” to determine grounds for summary judgment). “Issues not
expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal
as grounds for reversal.” TEX. R. CIV. P. 166a(c). A “ground” or an “issue” is a reason for granting or denying
summary judgment. McConnell, 858 S.W.2d at 339 n.2. We consider Powell’s argument in his summary judgment
reply about whether the scope of the Act includes the specific declaratory judgment claims in this case to be a
ground for summary judgment not included in his motion.


                                                       –20–
Absent a ruling, there is nothing for our review regarding the Knipps’ declaratory judgment

claims. We conclude Powell presented nothing for the trial court to decide or for us to review, so

our opinion and judgment do not disturb the Knipps’ declaratory judgment claims.

                                         CONCLUSION

       We conclude the trial court erred by not granting Powell’s motion for summary judgment

to be dismissed as to the Knipps’ negligence claim pursuant to section 101.106(f). Because the

trial court’s summary judgment order properly does not include a ruling on Powell’s declaratory

judgment claims, we leave undisturbed the Knipps’ declaratory judgment claims which remain

pending further proceedings in the trial court.      We reverse the trial court’s order denying

summary judgment seeking substitution or dismissal pursuant to Texas Civil Practice and

Remedies Code, § 101.106(f).      We render judgment that the Knipps’ negligence claim is

dismissed as to Powell.



                                                     / David Evans/
                                                     DAVID EVANS
                                                     JUSTICE


140781F.P05




                                              –21–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JERRY A. POWELL, M.D., Appellant                    On Appeal from the County Court at Law
                                                    No. 5, Dallas County, Texas
No. 05-14-00781-CV         V.                       Trial Court Cause No. CC-13-02581-E
                                                    Opinion delivered by Justice Evans, Justices
ERIC KNIPP AND LAURA KNIPP,                         Bridges and Lang participating.
INDIVIDUALLY AND AS NEXT FRIEND
OF THE MINOR, JAMES HELMUT
KNIPP, Appellees

       In accordance with this Court’s opinion of this date, we REVERSE the trial court’s order
denying appellant’s motion for summary judgment or dismissal pursuant to Texas Civil Practice
and Remedies Code, § 101.106(f). We RENDER judgment that the negligence claim against
Jerry A. Powell, M.D. is DISMISSED.

       It is ORDERED that appellant Jerry A. Powell, M.D. recover his costs of this appeal
from appellees Eric Knipp and Laura Knipp, individually and as next friend of the minor, James
Helmut Knipp.


Judgment entered this 6th day of August, 2015.




                                             –22–
