author: LESLIE BROCK YATES, Justice.

text:
    SCHOTT GLAS, Appellant, v. Arturo ADAME et al. and Marshall Coleman et al., Appellees.
    No. 14-04-00560-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 16, 2005.
    Rehearing Overruled Oct. 20, 2005.

      Alene R. Levy, Lynne Liberato, Houston, for appellant.
    Francis I. Spagnoletti, James T. Liston, Houston, for appellees.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

LESLIE BROCK YATES, Justice.

This is an interlocutory appeal from the denial of the special appearance of appellant Schott Glas. Concluding the trial court erred in denying the special appearance, we reverse.

Factual and Procedural Background

Appellees are a class consisting of veterans of the 1991 Persian Gulf War, along with their families and others. The suit was filed in June 1994 and alleges that the defendants caused or contributed to their injuries from so-called “Gulf War Syndrome.” In September 1995, appellees named as additional defendants Schott Glas, a German commercial enterprise, and its subsidiary, Schott Corporation, a New York corporation. Schott Glas is a German entity that manufactures and sells specialized glassware, and appellees allege that Schott Glas sold specialized glass vessels to Iraq that were later used in chemical warfare during the Gulf War. At the time of the special appearance hearing, there were over 3,000 named plaintiffs and over 50 defendants, and appellees assert that the putative class will number as many as 100,000.

Schott Glas filed its special appearance in February 1996, and after extensive jurisdictional discovery, briefing, and hearings, the trial court denied Schott Glas’s special appearance. This appeal followed. In three issues, Schott Glas argues that the trial court erred in denying its special appearance because (1) it had insufficient “minimum contacts” with Texas to establish general jurisdiction, (2) exercising jurisdiction over it would violate “traditional notions of fair play and substantial justice,” and (3) the trial court erred in overruling its objections to appellees’ special appearance evidence.

Analysis

Legal Standard

Whether a trial court has personal jurisdiction over a defendant is a question of law. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex.2002) (“ATCC”). When the relevant jurisdictional facts are undisputed, we review the trial court’s determination de novo. See id. at 806; Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.). However, when the relevant facts are disputed, a party may challenge the trial court’s underlying factual conclusions for legal and factual sufficiency before determining whether the trial court erred in granting or denying a special appearance. ATCC, 83 S.W.3d at 806. If the trial court does not issue findings of fact, we presume the trial court resolved all factual disputes in favor of its judgment. Id.

The Texas long-arm statute governs Texas courts’ exercise of personal jurisdiction over a nonresident defendant. See Tex. Civ. Prac. & Rem.Code Ann. §§ 17.041-.045 (Vernon 1997 & Supp.2004-2005); Alenia Spazio, S.p.A. v. Reid, 130 S.W.3d 201, 210 (Tex.App.-Houston [14th Dist.] 2003, pet. filed). The long-arm statute reaches as far as federal constitutional due process will allow, and thus we rely on both federal and state precedent in reviewing the trial court’s personal jurisdiction decision. ATCC, 83 S.W.3d at 806; Alenia Spazio, 130 S.W.3d at 210.

Personal jurisdiction is proper if the defendant has established “minimum contacts” with Texas and the exercise of jurisdiction comports with “traditional notions of fair play and substantial justice.” ATCC, 83 S.W.3d at 806 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). “The purpose of the minimum-contacts analysis is to protect the defendant from being haled into court when its relationship with Texas is too attenuated to support jurisdiction.” Id. Thus, a defendant must “purposefully avail” itself of the benefits and protections of Texas law such that the defendant could reasonably anticipate being called into a Texas court. See id.; Koll Real Estate Group, Inc. v. Howard, 130 S.W.3d 308, 312 (Tex.App.-Houston [14th Dist.] 2004, no pet.). This ensures that a defendant is subject to personal jurisdiction based on its own purposeful activity and not the unilateral acts of a third party. ATCC, 83 S.W.3d at 806; Koll Real Estate, 130 S.W.3d at 312. Personal jurisdiction may not be based on Texas contacts that are random, fortuitous, or attenuated. ATCC, 83 S.W.3d at 806; Koll Real Estate, 130 S.W.3d at 312. It is the quality and nature of the defendant’s contacts, rather than the quantity, that is important to the minimum-contacts analysis. ATCC, 83 S.W.3d at 809-10.

A defendant’s contacts with the forum can give rise to either specific or general jurisdiction. Specific jurisdiction is based on purposeful contacts that give rise to the cause of action. Id. at 806. General jurisdiction allows personal jurisdiction based on contacts unrelated to the litigation as long as those contacts are “continuous and systematic.” Id. at 806-07. In this case, appellees allege only general jurisdiction.

The plaintiff has the initial burden of pleading sufficient allegations to bring the nonresident defendant within the provisions of the Texas long-arm statute. Id. at 807; Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 638, 548 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Upon the filing of a special appearance, the burden shifts to the defendant to negate all bases of personal jurisdiction alleged by the plaintiff. ATCC, 83 S.W.3d at 807; Bottle Rock, 108 S.W.3d at 548. “This standard does not mean that the nonresident defendant must negate every possible ground in the universe, but rather the acts in Texas alleged by the appellant to support personal jurisdiction.” Bottle Rock, 108 S.W.3d at 548.

Jurisdictional Time Frame

Before we analyze whether Schott Glas had sufficient minimum contacts with Texas to support the exercise of personal jurisdiction, we must first determine the relevant time frame during which those contacts must have occurred. The parties agree that the jurisdictional time frame begins in January 1986; the issue is when it ends. Schott Glas contends that its only relevant contacts are those up until the date of appellees’ injuries, which is, at the latest, when the Gulf War ended in the summer of 1991. Appellees maintain the jurisdictional time frame ends either on the date the suit was filed, as some federal courts have held, or the date of the injury.

This court and other Texas courts have held that the relevant jurisdictional time frame ends on the date of the injury. See Scott v. Huey L. Cheramie, Inc., 833 S.W.2d 240, 241 (Tex.App.-Houston [14th Dist.] 1992, no writ) (holding that contract signed after injury occurred was irrelevant to jurisdiction); Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 45 (Tex.App.Houston [14th Dist.] 1985, writ ref d n.r.e.) (finding the “crucial period” for assessing personal jurisdiction to be when the allegedly defective product was sold and caused injury); see also MedCost, L.L.C. v. Loiseau, 166 S.W.3d 421, 434 (Tex.App.-Austin, 2005, no pet. h.) (“The relevant contacts are those up to the time of injury.”); Moni Pulo Ltd. v. Trutec Oil & Gas, Inc., 130 S.W.3d 170, 173 n. 1 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (citing Scott with approval); AmQuip Corp. v. Cloud, 73 S.W.3d 380, 388 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (holding that telephone calls made after accident date were irrelevant to jurisdiction). Accordingly, we hold that the jurisdictional time frame in this case extends from January 1986 to the summer of 1991, the latest appellees could have been injured. Thus, we will discuss only those contacts occurring during that time period.

Minimum Contacts

Appellees argue that Schott Glas has sufficient minimum contacts with Texas on the following three bases: (1) by imputing to Schott Glas the contacts of related German entities on the basis that they are a “single business enterprise,” (2) by concluding that Hank Merino of Merino Sales, Inc., a sales representative based in Dallas, is Schott Glas’s agent and thus imputing Merino’s contacts to Schott Glas, and (3) the sale of Schott Glas products in Texas and Schott Glas’s alleged post-sale service of goods in Texas. We consider each of these theories in turn.

a. Contacts of Related Entities

Schott Glas is one of two German affiliates of a third entity, a foundation established under German law over 100 years ago called a “Stiftung.” Appellees have, through various theories in their amended petitions, attempted to impute to Schott Glas the contacts of these other two related entities.

In Texas, corporate entities are presumed to be separate, and a plaintiff attempting to assert personal jurisdiction against one defendant based on the contacts of another entity has the burden of proving a basis for doing so. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 798 (Tex.2002); Le Meridien Hotels & Resorts v. LaSalle Hotel Operating P’ship, 141 S.W.3d 870, 881 (Tex.App.-Dallas 2004, no pet.); Roll Real Estate, 130 S.W.3d at 313. Furthermore, each basis for disregarding this presumption of corporate separateness must be specifically pleaded or it is waived. See Villanueva v. Astroworld, Inc., 866 S.W.2d 690, 695 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

In their latest amended petition, appel-lees attempt to combine the Texas contacts of these three German entities under the German law theory of “Konzern,” asserting that “these entities are to be considered a Konzern (group) because they share unified management, participate in a common scheme to make profit, and are under the domination of one player — [the Stiftung].” In their brief, appellees state that they “do not contend that there is evidence showing that any of the Schott entities have failed to follow corporate formalities or have abused the corporate form.” Their brief makes no mention of their pleaded Konzern theory, instead arguing the new, unpleaded theory that these three entities constitute a “single business enterprise” and thus, all of their Texas contacts should be considered together. We reject appellees’ attempt to argue this unpleaded theory for the first time on appeal. See Reyes v. Marine Drilling Cos., 944 S.W.2d 401, 405 (Tex.App.Houston [14th Dist.] 1997, no writ) (holding that unpleaded personal jurisdiction theories are negated by proof that defendant is a nonresident); Villanueva, 866 S.W.2d at 695 (noting that each basis for disregarding the corporate fiction must be specifically pleaded or be waived). We conclude that appellees’ single business enterprise theory has been waived, leaving appellees with no basis on appeal for imputing to Schott Glas any Texas contacts of its related German entities.

b. Contacts of Alleged Agent

Merino Sales, Inc., owned by Hank Merino, is a Dallas-based company that serves as a sales representative for various companies, including Schott Electronics, Inc. (“SE”), an indirect subsidiary of Schott Glas that is headquartered in Connecticut. SE sells its own products as well as Schott Glas’s products, and Merino promotes and markets those products in Texas. Appellees claim that Merino’s Texas contacts should be imputed to Schott Glas. SE and Schott Glas are presumed to be distinct corporate entities, and appel-lees specifically disavow any claim that “any of the Schott entities have failed to follow corporate formalities or have abused the corporate form.” Thus, appellees can impute Merino’s Texas contacts to Schott Glas based only on some direct relationship between Schott Glas and Merino, not on Merino’s relationship with SE.

In an attempt to establish this direct relationship, appellees argue that Merino is Schott Glas’s agent. The agency question is significant to our jurisdictional analysis because the Texas contacts of an agent are attributable to the principal whereas the contacts of an independent contractor are not. See Bottle Rock, 108 S.W.Sd at 549 n. 4; Williamson v. Petrosakh Joint Stock Co., 952 F.Supp. 495, 498 (S.D.Tex.1997).

An agent is one who consents to the control of another to conduct business or manage some affair for the other, who is the principal. Bottle Rock, 108 S.W.3d at 549. An agency relationship cannot be presumed, and the burden of proof is on the party asserting the existence of the relationship. See Royal Mortgage Corp. v. Montague, 41 S.W.3d 721, 732 (Tex.App.-Fort Worth 2001, no pet.); O’Bryant v. Century 21 S. Cent. States, Inc., 899 S.W.2d 270, 271 (Tex.App.-Houston [14th Dist.] 1995, no writ). The defining feature of the agency relationship is the principal’s right to control the actions of the agent. Bottle Rock, 108 S.W.3d at 549; Townsend v. University Hospital-University of Colo., 83 S.W.3d 913, 921 (Tex.App.-Texarkana 2002, pet. denied). This right to control includes not only the right to assign tasks but the right to dictate the means and details of how the agent will complete these tasks. Bottle Rock, 108 S.W.3d at 549; Townsend, 83 S.W.3d at 921. It is this level of control that distinguishes an agent from an independent contractor. Bottle Rock, 108 S.W.3d at 549. As the Austin Court of Appeals explained,

The Texas cases stress the right of control. Where one has the right to control the end sought to be accomplished but not the means and details of the accomplishment; that is, only what shall be done, not how it shall be done, the person employed acts as an independent contractor and not as an agent.

First Nat’l Bank v. Bullock, 584 S.W.2d 548, 551-52 (Tex.Civ.App.-Austin 1979, writ ref d n.r.e.).

Whether an agency relationship exists is generally a question of fact. Royal Mortgage, 41 S.W.3d at 733. The trial court did not expressly find that Merino was Schott Glas’s agent, but we presume the trial court impliedly found all necessary facts to support the judgment if supported by legally and factually sufficient evidence. ATCC, 83 S.W.3d at 806. Thus, we construe Schott Glas’s argument that Merino is not its agent as an attack on the legal and factual sufficiency of the evidence to support the trial court’s implicit finding that an agency relationship exists. See Bottle Rock, 108 S.W.3d at 549. In reviewing factual sufficiency, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged findings. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After considering and weighing all the evidence, we set aside a fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). In reviewing for legal sufficiency, we view the evidence in a light that tends to support the disputed findings and disregard all evidence and inferences to the contrary. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex.2001). If more than a scintilla of evidence exists, it is legally sufficient. Id.

Hank Merino testified that he is an independent sales representative and that no Schott entity controls the details of his work or directs how he performs his duties. Merino hires and fires his own employees and pays all of his own expenses, and he is compensated by commission for his sales. Though he considers sales advice from Schott Glas when it is offered, Merino decides when and how he conducts his sales business.

In support of their argument that Merino is Schott Glas’s agent, appellees point to evidence regarding Merino’s sales activities and the interactions between Schott Glas and Merino, including:

• Merino made sales calls on Texas customers to sell Schott Glas products, using samples and promotional materials provided by Schott Glas.
• Merino had regular communication with Schott Glas’s marketing manager, who traveled to Texas about twice per year to meet with Merino to provide product information and to visit customers.
• Customers frequently contacted Merino for service and support regarding their Schott Glas products.
• Schott Glas paid some commissions to Merino.

Based on this evidence, appellees assert that Merino is Schott Glas’s agent. However, they cite no evidence and make no argument as to how these actions establish that Schott Glas had control over the means and details of Merino’s work. See Moni Pulo, 130 S.W.3d at 176 (repeated assertions that an entity is an agent are irrelevant without evidence of control); O’Bryant, 899 S.W.2d at 272 (finding that list of complaints about alleged agent’s behavior was insufficient to avoid summary judgment on agency issue because appellant presented no evidence “that appellee had the right of control over any of the matters complained of by appellant”). Though sales representatives and agents may do similar things, every sales representative is not automatically an agent. See Applied Polymers of America v. Wright Waterproofing Co., 608 S.W.2d 164, 165 (Tex.1980).. For example, in Bearry v. Beech Aircraft Corp., 818 F.2d 370, 372 (5th Cir.1987), Beech had a network of Texas dealers that sold nearly $250 million of its products in Texas over a .five-year period. The Fifth Circuit found that without evidence that Beech controlled the dealers or had agents in Texas, the fact that its products were being sold in Texas did not establish general jurisdiction. Id. at 375-76; see also Moni Pulo, 130 S.W.3d at 176 n. 13 (“[A] nonresident does not subject itself to general jurisdiction every time it retains the benefits that flow from a third-party’s Texas contacts.”).

Because appellees presented no evidence that Schott Glas controlled the means and details of Merino’s work, the evidence is legally and factually insufficient to support the trial court’s implicit finding that Merino is Schott Glas’s agent. See Bottle Rock, 108 S.W.3d at 550. Thus, we do not consider Merino’s Texas contacts when assessing whether the trial court properly exercised personal jurisdiction over Schott Glas.

c. Contacts of Schott Glas Directly

In the relevant jurisdictional time frame, it is undisputed that $1,408,134.15 worth of Schott Glas products were shipped to Texas. Appellees argue that based on this volume of sales alone, general jurisdiction is proper. However, because it is the quality and nature of the contacts that is important, this fact standing alone is not dispositive of our inquiry. ATCC, 83 S.W.3d at 809-10. Accordingly, we examine the details of these sales.

The vast majority of these sales were made not through Schott Glas but through SE, Schott Glas’s indirect subsidiary. As discussed above, SE is a distinct corporate entity whose Texas contacts may not be attributed to Schott Glas for jurisdictional purposes. Additionally, 98.9% of the shipments were made “F.O.B. Germany,” which means title to the goods passed in Germany rather than in Texas. See id. at 808; Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 144 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). This is significant for jurisdictional purposes because by ensuring that title passes outside of the forum state, the nonresident defendant is not invoking the benefits and protections of the forum’s laws. See ATCC, 83 S.W.3d at 808; Zamarron, 125 S.W.3d at 145.

Appellees argue that this F.O.B. designation is a “hyper-technical application of risk-of-loss terms” that should not be used for assessing jurisdiction. However, the Texas Supreme Court has rejected the argument that the jurisdictional significance of the F.O.B. designation is a mere “technicalitfy],” reasoning that it shows the nonresident defendant has exercised its right to deliberately structure its business to avoid the benefits and protections of the forum. See ATCC, 83 S.W.3d at 808 (citing Bearry, 818 F.2d at 375-76); see also Zamarron, 125 S.W.3d at 145 (citing Bearry). Finding personal jurisdiction based on such shipments is inconsistent with the notion that the nonresident defendant must purposefully avail itself of the benefits and protections of the forum’s laws to be subject to personal jurisdiction. See ATCC, 83 S.W.3d at 806, 808; see also Roll Real Estate, 130 S.W.3d at 312.

The Fifth Circuit’s opinion in Bearry is particularly instructive. Beech delivered over $72 million worth of airframe assemblies to a Texas customer over a five-year period, all shipped “F.O.B. Wichita [Kansas].” 818 F.2d at 373. The court held that such shipments were insignificant in analyzing general jurisdiction, stating:

Beech exercised its right to structure its affairs in a manner calculated to shield it from the general jurisdiction of the courts of other states such as Texas, carefully requiring the negotiation, completion, and performance of all contracts in Kansas. Beech has not afforded itself the benefits and protections of the laws of Texas, but instead has calculatedly avoided them.... We are not aware that other courts have disregarded the structure of transactions in support of general jurisdiction. And, we have held such “technicalities” [as when title passes to goods] relevant in analyzing general personal jurisdiction questions.

Id. at 375-76. In ATCC, which involved the special appearance appeal of another defendant in this matter, the Texas Supreme Court relied on Bearry in holding that ATCC’s Texas sales of approximately $350,000 a year for eighteen years that were shipped F.O.B. Rockville, Maryland did not support a finding of general jurisdiction. 83 S.W.3d at 807-08; see also Zamarron, 125 S.W.3d at 144-45 (following Bearry in holding that millions of dollars worth of parts sent “F.O.B. Osaka” did not establish general jurisdiction).

Appellees also argue that “[a]ny effect of the F.O.B. terms is made irrelevant by the evidence of [Schott Glas’s] post-sale service.” This evidence includes the customer service provided by Merino and travel to Texas by various Schott Glas personnel, including its marketing manager, for customer service issues. Appellees cite no authority for this theory that post-sale service negates the effect of a non-forum F.O.B. designation. Indeed, Beech sent representatives to Texas to demonstrate new aircraft and assist with maintenance problems. Bearry, 818 F.2d at 373. Schott Glas’s customer service contacts can legitimately be analyzed for jurisdictional purposes, but we reject the notion that post-sale service transforms the sale itself into a relevant jurisdictional contact when the sale was structured so that title passed outside of Texas.

In examining Schott Glas’s post-sale contacts, we find that they are insufficient in themselves to support general jurisdiction. Appellees emphasize that Schott Glas had Merino in place in Texas to handle most of its customer service issues, but, as already discussed, Merino is not Schott Glas’s agent and thus, his Texas contacts are not attributable to Schott Glas. Appellees also point to forty-four visits to Texas by Schott Glas personnel. However, in the relevant time frame, there were just fifteen visits, only six of which were true customer service visits. These trips were all requested by a Texas customer, Honeywell, who did not need any post-sale service on a product but wanted to discuss possible product changes. Schott Glas took advantage of its time in Texas to visit other customers, but the trips were initiated at Honeywell’s request and thus do not constitute a deliberate contact with the forum for jurisdictional purposes. See Bearry, 818 F.2d at 373 (noting that Beech sent representatives to Texas to assist with maintenance problems and demonstrate new aircraft only at the request of independent Texas dealers); Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 417-18 (Tex.App.Houston [14th Dist.] 1997, no writ) (plurality op.) (finding that out of about 500 barge trips per year, sending only 10 to Texas because of customer requests does not constitute purposeful contacts to support general jurisdiction). Of the remaining nine trips, seven were to attend trade exhibitions, which are irrelevant for jurisdictional purposes because the participants do not select the location. See ATCC, 83 S.W.3d at 809. The last two visits were for a plane change and a trip to Austin for an unknown reason. Such sporadic travel does not constitute the continuous and systematic contacts necessary to establish general jurisdiction. See Moni Pulo, 130 S.W.3d at 179 (finding that fifteen visits to Texas over seven years were “occasional and isolated” and “insufficient to establish general jurisdiction”); Preussag, 16 S.W.3d at 124 (“Occasional travel to Texas is insufficient by itself to establish continuous and systematic contact.”).

Conclusion

We conclude that Schott Glas did not have sufficient minimum contacts with Texas to warrant the trial court’s exercise of personal jurisdiction over it. Thus, we sustain Schott Glas’s first issue. Because we reverse on this basis, we need not address the other bases argued for reversal in Schott Glas’s second or third issues. We reverse the trial court’s judgment denying Schott Glas’s special appearance and render judgment that this action against Schott Glas be dismissed for lack of personal jurisdiction.

      . Schott Corporation appeared and answered and did not contest personal jurisdiction.

      . See, e.g., Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 717 (5th Cir.1999).

      . Appellees argue that under a date of injury analysis, the relevant date is not when the Gulf War ended in the summer of 1991 but, as with the discovery rule in the limitations context, the date of discovery of their injuries. Appellees cite no authority for importing the discovery rule concept into personal jurisdiction analysis, and we decline to do so. The discovery rule is designed to protect plaintiffs with latent injuries from losing their ability to sue before their injuries are discovered. That is completely unrelated to the goal of general jurisdiction, which is to hold a nonresident defendant accountable in the forum state when it has purposefully availed itself of the benefits and protections of the forum’s laws.

      . An indirect subsidiary is one in which Schott Glas does not directly hold stock but "in which it has a financial interest by virtue of holding stock in another company that, in turn, holds stock” in the subsidiary. Preus-sag, 16 S.W.3d at 112 n. 2. Merino also works with another of Schott Glas’s indirect subsidiaries, Schott Fiber Optics, Inc., but since their relationship did not begin until 1992, it is outside the jurisdictional time frame and thus irrelevant to our minimum contacts analysis.

      . Appellees also contend that Merino did not always make it clear to his customers that he was an independent contractor or that he was not Schott Glas's agent. “However, it is settled law in Texas that the mere declarations of an alleged agent, standing alone,' are incompetent to establish either the existence of the alleged agency or the scope of the alleged agent’s authority.” Bottle Rock, 108 S.W.3d at 550.

      . Most, if not all, of the remaining 1.1% of these Texas sales were shipped "F.O.B. Texas" because of a clerical mistake in the shipping department. Such fortuitous contacts cannot establish general jurisdiction. See ATCC, 83 S.W.3d at 806; Koll Real Estate, 130 S.W.3d at 312.

      . Appellees attempt to distinguish ATCC by asserting that ATCC did not provide any service after the sale. However, the supreme court's opinion is completely silent on that issue, and we do not interpret this silence as establishing that none existed or speculate on what the supreme court would have done if it had in fact considered such an argument.


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    Frank MUSSEMANN, M.D., Amy Plummer, M.D., and Daniel Hersh, M.D., Appellants, v. Mercedes VILLARREAL, as next friend of Juan Pablo Elizondo, a minor, Appellee.
    No. 14-04-00746-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 25, 2005.
    Rehearing En Banc Overruled Nov. 17, 2005.

      Claude M. McQuarrie, III, Warren Szutse Huang, Houston, for appellants.
    Candelario Elizondo, Houston, Les Weisbrod,- William Arthur Newman, Dallas, for appellee.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

KEM THOMPSON FROST, Justice.

Appellants Frank Mussemann, M.D., Amy Plummer, M.D., and Daniel Hersh, M.D. appeal from the trial court’s denial of their motion for summary judgment. After reviewing the record, we conclude that they have failed to conclusively establish the affirmative defense of official immunity as a matter of law, and we therefore affirm the trial court’s denial of their motion for summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellants Frank Mussemann, M.D., Amy Plummer, M.D., and Daniel Hersh, M.D. (hereinafter collectively referred to as the “Doctors”) were third-year and fourth-year residents at Baylor College of Medicine, working rotations at Ben Taub General Hospital (“Ben Taub”), when Mercedes Villarreal presented with complications late in pregnancy. The Doctors assisted Villarreal with the management of these complications and with the eventual caesarean birth of Villarreal’s son. Villarreal’s son was born in distress and suffers from severe birth defects. Appellee Mercedes Villarreal, as next friend of her son Juan Pablo Elizondo, has sued the Doctors, alleging that they negligently performed their duties. Although the Doctors dispute that they were negligent, they moved for summary judgment based on the affirmative defense of official immunity. The trial court denied the Doctors’ motion, and the Doctors have filed this interlocutory appeal, arguing that the summary-judgment evidence conclusively establishes their entitlement to official immunity as a matter of law.

A. Villarreal’s Experience at Ben Taub

Villarreal is from Mexico. She came to the United States when she was about three months pregnant and began receiving prenatal care from the Southwest Community Clinic, a public facility operated by the City of Houston. Thereafter, she intermittently saw doctors at Ben Taub’s obstetric clinic, beginning in December 1994. When Villarreal was diagnosed as a high risk patient near the end of her pregnancy, she was referred to Ben Taub’s High Risk Obstetric Clinic for continued prenatal care and eventual delivery.

Villarreal suffered from gestational diabetes. In addition, her baby was in a breech position. When the medical providers at Ben Taub began managing her pregnancy, they first tried to correct the baby’s breech presentation by a procedure called a “version,” which is an external manipulation of fetal position. This procedure was not successful, so it became necessary to consider delivery by caesarean section. Given the probable caesarean section, and the fact that gestational diabetes can compromise fetal lung maturity, Villarreal was advised to undergo a third-trimester amniocentesis to make sure the baby’s lungs had matured sufficiently.

On April 20, 1995, Dr. Plummer performed the amniocentesis on Villarreal. Afterwards, Dr. Plummer monitored the baby for five to ten minutes on ultrasound equipment. At this time, Dr. Plummer did not monitor the baby using an electronic fetal monitor.

Three days after the amniocentesis, Villarreal came to Ben Taub complaining that she had not felt her baby moving that day. A nurse placed her on an electronic fetal monitor, which showed that the fetal heart rate was minimally reactive and needed investigation. A first-year resident supervised by Dr. Hersh evaluated Villarreal and began a biophysical profile (“BPP”) of the baby. When the resident saw no evidence of fetal movement, he contacted Dr. Hersh to continue the BPP. Dr. Hersh completed the BPP, which yielded abnormal results and showed that the baby had been motionless for the entire examination. According to Dr. Hersh, these facts required an “urgent” caesarean section. Dr. Hersh consulted with his supervising resident, Dr. Mussemann, regarding this proposed course of treatment, and Dr. Mus-semann concurred.

During preparations for the caesarean section, Villarreal had a contraction, and the fetal heart rate further declined. With this development, Dr. Mussemann determined that a “stat” or “emergency” caesarean section should be performed immediately. Villarreal’s baby was soon delivered by caesarean section. He was limp and pale, and tests revealed that he had severe anemia due to a massive fetal-maternal hemorrhage, that is, a loss of the baby’s blood into the mother’s system. After treatment in the neonatal unit, the baby eventually was discharged. After the baby’s discharge, medical providers determined that, among other things, he suffered from severe global developmental delay and mental retardation.

B. Villarreal’s Lawsuit on Behalf of Her Son

Villarreal, as next friend of her son, filed a medical-malpractice suit against the Doctors. In this suit, Villarreal asserts the Doctors were negligent based on the following alleged acts and omissions:

• Dr. Plummer’s performance of an amniocentesis that was unnecessary and conducted improperly;
• Dr. Plummer’s failure to monitor the fetus after the amniocentesis with an electronic fetal monitor, so that any adverse effect could be identified and addressed;
• Dr. Hersh’s failure to properly supervise a first-year resident;
• Dr. Hersh’s failure to promptly recognize an uncorreetable, non-reactive fetal heart-rate pattern on the fetal-monitor strip;
• Dr. Hersh’s failure to consult more promptly with the supervising resident, Dr. Mussemann, or an attending physician, when faced with an uncorrectable, non-reactive fetal heart-rate pattern;
• Dr. Hersh’s performance of an unnecessary BPP of the fetus, which delayed the caesarean section;
• Dr. Mussemann’s failure to properly supervise Dr. Hersh;
• Dr. Mussemann’s failure to perform an “emergency” caesarean section, as opposed to an “urgent” caesarean section, when first consulted by Dr. Hersh;
• Dr. Mussemann’s choice of anesthesia for performing the caesarean section; and
• Dr. Mussemann’s failure to consult more promptly with the attending physician.

C. Official Immunity and the Nature of the Practice at Ben Taub

Although the Doctors dispute Villarreal’s allegations of negligence, for the purposes of this appeal, they rely on the defense of official immunity. Because Ben Taub is a public hospital operated by the Harris County Hospital. District, which provides acute-care medical services to the indigent and low-income population of Harris County, the Doctors contend that they are immune from liability for their actions in treating Villarreal.

To support their position regarding official immunity, the Doctors proffered summary-judgment evidence regarding the nature of the practice at a large public hospital like Ben Taub. The Doctors claim that . Ben Taub is chronically strained by budgetary constraints and that it does not have access to state-of-the-art equipment, an adequate nursing staff, or even sufficient space to accommodate its extremely high patient load. The Doctors also note that their practice is characterized by higher-than-average workplace stress due to the combination of a high patient load and inadequate resources. The Doctors allege that treating an indigent or low-income population has its own complications, including frequent language barriers and incomplete or misplaced medical records, with resulting uncertainty regarding a patient’s medical history.

The Doctors contend that these and other factors complicate the treatment of the typical obstetric patient. Many obstetric patients have had gaps in prenatal care and testing, and may have an uncertain date for the beginning of pregnancy. Due in part to these problems, many of these patients either are or have become high risk and present more complicated medical issues than do patients at private hospitals. In addition, longer-than-áverage delays sometimes complicate prenatal testing and procedures. The Doctors claim that these and other factors impacted their treatment of Villarreal.

Notwithstanding these difficulties, Ben Taub’s physicians are required to treat all patients who present themselves for treatment, as long as Ben Taub routinely provides the type of treatment such patients are seeking. Because Ben Taub provides obstetric care for both normal and high risk pregnancies, obstetric patients such as Villarreal, who present themselves to Ben Taub’s High Risk Obstetric Clinic, are routinely treated, irrespective of complications they may have or risks of a poor outcome.

The Doctors moved for summary judgment, claiming that these factors conclusively established their right to official immunity. The trial court denied the motion for summary judgment. Appealing this ruling, the Doctors argue that they are entitled to official immunity because they exercised governmental discretion, or medical discretion “colored by governmental factors and concerns,” when they treated Villarreal. Alternatively, the Doctors contend that public policy considerations require this court to re-evaluate the doctrine of official immunity as it is applied to medical personnel under Kassen v. Hatley, 887 S.W.2d 4 (Tex.1994).

II. STANDARD OF REVIEW

We review a trial court’s denial of summary judgment de novo. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). Because the doctrine of official immunity is an affirmative defense, to prevail on summary judgment, a movant must establish conclusively each element of this affirmative defense. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994). To meet this burden, the Doctors must demonstrate that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Id. at 8 n. 2. In determining whether an issue of material fact exists, we take as true all evidence favorable to the nonmov-ant and indulge all reasonable inferences in the nonmovant’s favor. Id.

III. ANALYSIS

A. Have the Doctors conclusively established that they exercised governmental discretion?

Ordinarily, public officials must show the following elements to establish a defense of official immunity: (1) the performance of a discretionary function, (2) in good faith, and (3) within the scope of the employee’s authority. Kassen, 887 S.W.2d at 9. In Kassen, the Texas Supreme Court adopted the rule of official immunity from other states that requires government-employed medical personnel who seek official immunity to prove that they are being sued for the exercise of “governmental discretion” rather than “medical discretion.” Id. at 11. The Kas-sen court agreed with cases from other states holding that governmental discretion, which would entitle such medical personnel to immunity, refers to actions taken in an administrative or policy-making capacity. Id. at 11 & n. 7 (noting agreement with Henderson and Comley cases); Henderson v. Bluemink, 511 F.2d 399, 403 & n. 24 (D.C.Cir.1974) (stating that governmental discretion, to which official immunity applies, includes acts performed in an administrative capacity); Comley v. Emanuel Lutheran Charity Bd., 35 Or. App. 465, 478-79, 582 P.2d 443, 451-52 (1978) (holding doctor did not have immunity in suit alleging he committed various acts of medical negligence in treating a patient and stating that doctor’s alleged acts were not the exercise of governmental discretion because they did not involve decisions regarding public policy). The Kassen court also stated that it agreed with decisions from other states holding that discretion exercised in the treatment of individual patients is medical discretion not entitled to immunity. Kassen, 887 S.W.2d at 11 & n. 7 (noting agreement with Womble, Cooper, and Protic cases); Womble v. Singing River Hosp., 618 So.2d 1252, 1262-65 (Miss.1993) (stating that government-employed medical personnel have no immunity for their decisions involving individual medical treatment but that they have immunity for decisions regarding the formulation and implementation of public policy), superseded by statute as stated in Sparks v. Kim, 701 So.2d 1113, 1115 & n. 2 (Miss.1997); Cooper v. Bowers, 706 S.W.2d 542, 543 (Mo.Ct.App.1986) (holding that a government-employed doctor does not perform a governmental function by treating patients); Protic v. Castle Co., 132 Wis.2d 364, 369-70, 392 N.W.2d 119, 122 (Ct.App.1986) (stating that providing medical care to patients does not involve governmental policy and decision-making that would entitle government-employed doctor to immunity).

To qualify for protection, the discretion exercised need not be “uniquely governmental.” Kassen, 887 S.W.2d at 12. To determine the character of the discretion medical personnel exercised, we must examine the facts of each case and the underlying policies promoted by official immunity. Id. Our decision necessarily involves a balancing of individual rights and the public interest. Id. The Kassen court declined to provide a precise definition for determining when the acts of government-employed medical personnel involve governmental discretion. Id. at 12. n. 8. However, the Kassen court recommended that courts consider the following factors:

1. the nature and importance of the function that the employee is performing,
2. the extent to which passing judgment on the exercise of discretion by the employee will amount to passing judgment on the conduct of a coordinate branch of government or an agency thereof,
3. the extent to which the imposition of liability would impair the employee’s free exercise of discretion,
4. the extent to which financial responsibility will fall on the employee,
5. the likelihood that harm will result to the public if the employee acts,
6. the nature and seriousness of the type of harm that may be produced, and
7. the availability to the injured party of other remedies and forms of relief.

Id. (citing Restatement (Second) of Touts § 895D cmt. f (1977)).

In discussing the distinction between governmental discretion and medical discretion, the Kassen court indicated that government-employed medical personnel exercise governmental discretion in the following circumstances: (1) when they exercise policy-making or administrative responsibilities not shared by private-sector providers, and (2) when they decide how to allocate a scarce pool of state resources among possible recipients. Kassen, 887 S.W.2d at 10. On the other hand, the Kassen court indicated that discretion exercised by government-employed medical personnel in their treatment of patients is medical discretion not subject to immunity. See id. at 10-11. The Kassen court stated that, if governmental factors and concerns colored the discretion of government-employed medical personnel, policy considerations may call for immunity, even though these personnel have duties and responsibilities that coincide with private-sector providers. Id. at 12.

It is undisputed that the Doctors exercised discretion; the issue on appeal is whether the trial court erred in determining that the Doctors did not conclusively establish each element of their official-immunity defense. More specifically, we must determine whether the trial court erred in ruling that the Doctors did not conclusively establish that Villarreal is suing them for exercising their governmental discretion.

Villarreal alleges negligence based on the need for a third-trimester amniocentesis, the performance of the amniocentesis itself, and the need for monitoring after-wards. All of these acts or omissions relate to a doctor’s specialized knowledge, judgment, and discretion in treating a specific patient. The same is true for the decisions involving Villarreal’s labor and delivery. What sort of tests to perform and the interpretation of the test results each required a physician to assess the situation and decide the appropriate course of action. What sort of anesthesia to use during a caesarean section and whether to perform the procedure on an “urgent” or an “emergency” basis are exercises of medical discretion. Finally, supervising the medical decision-making of less-experienced doctors, along with determining when to consult more-experienced physicians, are the exercise of medical discretion. See, e.g., Drogin v. Campbell, 928 S.W.2d 205, 207 (Tex.App.-San Antonio 1996, no writ) (holding that a decision based on medical necessity involved the exercise of medical discretion). Under the legal standard set forth in Kassen, we conclude that Villarreal is suing the Doctors based on their exercise of medical discretion rather than governmental discretion. See id. (holding that employees of state hospital did not have official immunity for their alleged negligence in treating and releasing patient because they exercised medical discretion under Kassen); Wamble, 618 So.2d at 1262-65 (holding that emergency-room doctors were not immune from malpractice action against them because their treatment of the patient in question did not involve formulating or implementing government policy); Cooper, 706 S.W.2d at 542-43 (holding that a prison doctor did not have immunity for discontinuing an inmate’s medication because the doctor was treating a patient, which is not “conduct partaking of the essence of governing”) (quotations omitted); Comley, 35 Cr.App. 465, 478-79, 582 P.2d 443, 450-52 (holding doctor was not immune because his alleged negligence in treating premature child did not involve governmental discretion); Protic, 392 N.W.2d at 122 (holding that doctor was not entitled to immunity because his alleged negligence in treating patient did not involve governmental decisionmaking).

The Doctors argue that they exercised “governmental discretion” in treating Villarreal because they provided health care to the indigent, caring for government patients with government resources in a government facility. These factors do not show that the Doctors exercised governmental discretion under the Kassen legal standard. The Kassen court indicated that discretion exercised by government-employed medical personnel in their treatment of patients is medical discretion not subject to immunity. Kassen, 887 S.W.2d at 10-11. The facts of Kassen involved a challenge to the decision-making of a third-year resident serving at a' public hospital. Id. at 7. The Kassen court concluded that, because the challenged decision was motivated by “therapeutic considerations,” the “exercise of discretion was medical only,” and the resident, though working at a public hospital, was “not entitled to official immunity.” Id. at 12. Concluding that government doctors are entitled to immunity simply because they practice medicine in the setting of a government hospital, under more adverse conditions than private doctors, would be contrary to Kassen and the cases cited therein. See id. at 9-12.

In addition, the Doctors have developed a record of what they contend are “governmental factors and concerns” that allegedly “colored” the exercise of their discretion. They contend that these factors were not present in Kassen and that the presence of these factors and concerns affected their medical discretion in a manner that requires us to grant them immunity. We do not find the Doctors’ arguments persuasive.

The Doctors introduced evidence regarding what sort of patient Villarreal was, claiming that the following facts were governmental factors or concerns that colored their discretion:

• Villarreal had gaps in prenatal care and limited availability of records.
• Villarreal’s prenatal care was provided by different providers at different locations.
• Villarreal’s limited ability to speak English may have created a language barrier.
• The Doctors viewed Villarreal as a “non-compliant” patient who had a high risk for a poor outcome.

Although these issues may have influenced how the Doctors treated Villarreal, none of the factors is governmental in nature. Instead, any patient — even a private patient — may present for treatment with factors like these, ultimately requiring a private physician to make treatment decisions under less-than-perfect circumstances. Cf. Borrego v. City of El Paso, 964 S.W.2d 954, 959 (Tex.App.-El Paso 1998, pet. denied) (stating that decision to immobilize critical patient prior to moving him from scene of accident was medical in nature and thus not entitled to immunity). Even if these factors occur with more frequency in an indigent or low-income population, this does not convert the Doctors’ exercise of medical discretion into governmental discretion.

The Doctors also introduced evidence about the nature of public hospitals, noting that Ben Taub, like similar institutions, suffers from budgetary constraints, limited equipment and testing, the necessity of using residents to perform services, and the mandate to accept all patients who present for treatment. These problems, however, are the sort that are likely to be present in most or all public hospitals. To hold that these factors conclusively establish a right to official immunity would eviscerate the Kassen legal standard. Indeed, as discussed, some of these problems were either present or noted in Kassen itself. See, e.g., Kassen, 887 S.W.2d at 10 (stating that “government health care providers have less latitude in choosing patients than their private-sector counterparts”); see also Gross v. Innes, 930 S.W.2d 237, 241 (Tex.App.-Dallas 1996) (stating that “the fact that [medical personnel] did not have the option to refuse treating [a patient] is not a governmental factor coloring medical discretion in this case”), writ dismd w.o.j., 988 S.W.2d 727 (Tex.1998).

The Doctors argue that their care decisions were influenced by the fact that resources, such as electronic fetal monitors, were limited, and that some lab work, like analysis of the amniocentesis, had to be outsourced. These facts still fail to establish that the Doctors exercised governmental discretion. See, e.g., Gross, 930 S.W.2d at 241 (stating that “deciding what equipment to use in treating [patient] was an exercise of medical discretion”). The Kas-sen court indicated that “the need to allocate scarce state hospital resources among potential patients” is a “governmental concern.” 887 S.W.2d at 12. In this case, however, there is no summary-judgment evidence that the Doctors were involved in the allocation of hospital resources among patients or in the exercise of any other administrative or policy-making discretion at Ben Taub.

The Doctors also rely on a series of cases granting immunity to other public servants, such as a paramedic, a pathologist, a constable, and a mortician, to argue that doctors serving the public are entitled to immunity. The facts in these cases, however, are distinguishable from the present situation. Each case involved decision-making that implicated some aspect of public safety at large, such as traffic safety or accident investigation or management. The Doctors’ actions in this case, by contrast, do not directly relate to the safety of the public at large. They instead relate to the health of a single individual and her unborn child, a circumstance that the court in Kassen determined does not necessarily implicate the public interest. See Kassen, 887 S.W.2d at 11 (stating “the exercise of medical discretion does not require the same protection as the exercise of governmental discretion”); see also Gross v. Innes, 988 S.W.2d 727, 730 (Tex.1998) (holding that paramedic’s emergency transportation was distinguishable from exercise of medical discretion and thus did not give rise to conflict jurisdiction).

Under the Kassen standard and for the reasons stated above, we conclude the summary-judgment evidence does not conclusively prove that Villarreal is suing the Doctors based on their exercise of governmental discretion. Therefore, the Doctors did not conclusively establish each element of the affirmative defense of official immunity. Accordingly, we overrule the Doctor’s first issue.

B. Is there a separate inquiry into whether governmental factors and concerns colored the Doctors’ exercise of medical discretion?

The Doctors argue that the conclusion that they exercised medical discretion does not end the inquiry under Kassen. The Doctors claim they still may be entitled to immunity if they can show that their medical discretion was “colored by governmental factors and concerns.” They base this assertion on the following language from Kassen:

We anticipate difficult cases in which government-employed medical personnel will have duties and responsibilities that coincide with private-sector providers. In such cases, if governmental factors and concerns colored the doctor’s or nurse’s discretion, policy considerations may still call for official immunity. Such decisions necessarily involve a balancing of individual rights and the public interest.

Kassen, 887 S.W.2d at 12.

The Doctors assert that this language from Kassen requires a separate inquiry into whether the Doctors’ exercise of discretion, even if it was medical discretion, was colored by governmental factors and concerns. We disagree with this reading of Kassen. Just before the above-quoted language, the Kassen opinion states, “[w]e hold that government-employed medical personnel are not immune from tort liability if the character of the discretion they exercise is medical and not governmental.” Id. at 11. An independent inquiry into whether governmental factors and concerns colored the Doctors’ medical discretion would contradict this holding. Furthermore, the Kassen court cites cases from other states that determine whether immunity applies based on whether the discretion in question is medical or governmental. Just after the cited language upon which the Doctors rely to support an independent inquiry, the Kassen court, in a footnote, lists the factors that courts should consider in determining whether the discretion at issue is governmental discretion. See id. at 12 & n. 8.

In this context, we conclude that the language upon which the Doctors rely does not prescribe a second inquiry into whether governmental factors and concerns colored their medical discretion. Rather, this language describes the determination of whether the discretion at issue was medical or governmental and states that, if governmental factors and concerns colored this discretion, policy considerations may call for a determination that the discretion was governmental, even though the personnel in question have duties and responsibilities that coincide with private-sector providers. See id. The summary-judgment evidence does not show that Villarreal is suing the Doctors based on their exercise of any administrative or policy-making discretion at Ben Taub. Nor does the summary-judgment evidence show, let alone conclusively prove, that the Doctors’ alleged acts and omissions were an exercise of discretion colored by governmental factors and concerns. Based on the Kas-sen legal standard, we have determined that the discretion at issue is medical and not governmental. The Kassen precedent does not require a second inquiry, as urged by the Doctors.

Our construction of the Kassen legal standard is supported by the fact that the Kassen court did not conduct a separate inquiry into whether governmental factors and concerns colored the medical discretion of the doctor in question. See id. Further, most courts that have applied the Kassen legal standard have not conducted such a separate inquiry. See, e.g., City of El Paso v. Higginbotham, 993 S.W.2d 819, 824 (Tex.App.-El Paso 1999, no pet.) (asking only whether paramedic’s challenged action was governmental or related “to the proper course of medical treatment”); Borrego, 964 S.W.2d at 959 (determining only that “EMS utilized its medical discretion”); Drogin, 928 S.W.2d at 207 (determining only that appellants “exercised their medical discretion” in providing treatment); Corrola v. Guillen, 935 S.W.2d 949, 953 (Tex.App.-San Antonio 1996, no writ) (stating “the summary judgment evidence does not show that governmental discretion played a role in the decisions that form the basis of this lawsuit”); but see Gross, 930 S.W.2d at 241-42 (treating Kassen as articulating two alternatives for showing entitlement to official immunity).

We conclude that, under Kassen, there is no independent inquiry into whether governmental factors and concerns colored the Doctors’ medical discretion. The issue of whether governmental factors and concerns colored the Doctors’ discretion is part of the determination as to whether Villarreal is suing the Doctors based on their exercise of governmental discretion.

C. Do public policy concerns necessitate re-evaluation of the standard set forth by the Texas Supreme Court in Kassen v. Hatley ?

In their second issue, the Doctors urge this court to re-evaluate the rule in Kas-sen. The Doctors claim that applying Kassen to government doctors is not fair and fails to take account of various public policy concerns that support shielding public doctors from liability. Particularly, the Doctors point to the cost of liability insurance and note that the threat of liability will discourage able physicians and residents from serving in public hospitals. The Doctors further claim that denying government physicians official immunity threatens the viability of the public health care system in Texas.

The Texas Supreme Court already has weighed these concerns and determined that, when balanced with individual patients’ rights, an appropriate compromise is to grant immunity to government medical personnel only when they exercise governmental, as opposed to medical, discretion. As an intermediate appellate court, we are not at liberty to re-evaluate the propriety of this rule or to refuse to apply it to the facts of this case. In re K.M.S., 91 S.W.3d 331 (Tex.2002) (courts of appeals are not free to disregard pronouncements from Texas Supreme Court); Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex.1989). If the Doctors want to change the legal standard in Kassen, they should address these arguments to the Texas Supreme Court. Furthermore, if, as the Doctors contend, the practice of medicine in the public sector is approaching a crisis, then the Doctors also have the ability to seek redress from the Texas Legislature, which already has provided the medical profession some statutory relief. We overrule the Doctors’ second issue.

IV. CONCLUSION

For the foregoing reasons, we conclude that the Doctors did not conclusively establish that their allegedly negligent conduct occurred during the exercise of governmental, as opposed to medical, discretion. Therefore, the Doctors did not conclusively prove each element of the affirmative defense of official immunity. Accordingly, we overrule the Doctors’ issues and affirm the trial court’s order denying summary judgment.

      . We have jurisdiction over this interlocutory appeal under section 51.014(a)(5) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE § 51.014(a)(5) (Vernon Supp.2005).

      . We note that the only issue before this court is the Doctors’ entitlement to summary judgment based on their defense of common-law official immunity. There are no issues of sovereign immunity or statutory immunity before us.

      . The Texas Health and Safety Code provides that residents of supported medical schools are employees of the State "for the 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 unit, school, or entity.” TEX. HEALTH & SAFETY CODE ANN. § 312.007(a) (Vernon 2001). It is not disputed that the Doctors were residents at Baylor College of Medicine when they provided Villarreal treatment or that Baylor College of Medicine was a supported medical school as defined by the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 312.002(6).

      . Appellant Plummer argues that an electronic fetal monitor was not available to her in the High Risk Obstetric Clinic. However, in her affidavit, appellant Plummer also notes that she could have transferred Villarreal to the Labor and Delivery Unit for further monitoring had complications from the amniocentesis been apparent on the ultrasound.

      . See, e.g. DeWitt v. Harris County, 904 S.W.2d 650, 651-54 (Tex.1995) (recognizing that off-duty constable had official immunity arising from clearing and investigating a traffic accident); Rivas v. City of Houston, 17 S.W.3d 23, 26-29 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (holding paramedic was entitled to immunity in suit regarding emergency transport of patient in ambulance); Guerrero v. Tarrant County Mortician Servs. Co., 977 S.W.2d 829, 832-34 (Tex.App.Fort Worth 1998, pet. denied) (holding mortician company who contracted with county medical examiner to remove remains from scene of accident entitled to immunity); Putthoff v. Ancrum, 934 S.W.2d 164, 169-70 (Tex.App.-Fort Worth 1996, writ denied) (holding pathologist investigating unexplained cause of death entitled to immunily).

      . Even if Kassen did require such a second inquiry, the summary-judgment evidence does not show, much less conclusively prove, that Villarreal is suing the Doctors based on their exercise of medical discretion that was colored by governmental factors and concerns.

      . In 2003, Texas Legislature provided some protection to physicians by, among other things, limiting liability in health care liability claims. See TEX. CIV. PRAC. & REM. ANN. §§ 74.301-303 (Vernon 2004).


author: TERRIE LIVINGSTON, Justice.

text:
    Gary FORD and Blinda Ford, Appellants, v. PERFORMANCE AIRCRAFT SERVICES, INC. and Robert Jones, Appellees.
    No. 2-04-314-CV.
    Court of Appeals of Texas, Fort Worth.
    Sept. 8, 2005.
    Rehearing Overruled Oct. 20, 2005.

      Queenan Law Firm, P.C., M. Kevin Queenan, Desoto, TX, for Appellants.
    Strasburger & Price, L.L.P., Kevin J. Maguire, Amanda Lewis & Christine D. Roseveare, Dallas, for appellees.
    Panel B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

This case involves the propriety of the trial court’s order dismissing appellants Gary and Blinda Ford’s negligence, failure to warn, and strict liability claims against appellees Performance Aircraft Services, Inc. and Robert Jones for the Fords’ failure to amend their pleadings within the time specified by the trial court. In four issues, the Fords contend that the trial court abused its discretion by sustaining appellees’ special exceptions to the Fords’ petition, dismissing the Fords’ case without trying lesser sanctions first, and dismissing the Fords’ case in light of their untimely first amended petition, which was filed before the trial court entered its dismissal order, and that it denied them due process. We affirm.

Background Facts

The Fords filed suit against appellees alleging negligence, failure to warn, and strict liability in connection with Performance Aircraft’s use of chemicals to clean airplane parts in a hangar where Gary Ford worked. Appellees filed special exceptions to the Fords’ petition, alleging that the petition failed to state the maximum amount of damages pled in aceor-dance with Texas Rule of Civil Procedure 47; that it failed to give fair notice of the Fords’ claims against Jones, the president of Performance Aircraft, because it did not allege any facts that would support imposing liability upon Jones in his individual capacity; and that it did not give appellees fair notice of the products the Fords claimed were defective. The trial court granted appellees’ special exceptions and gave the Fords nine months to replead. The trial court’s order stated that if the Fords failed to replead within nine months, the case would be dismissed automatically.

Eleven days after the nine-month deadline for repleading, on June 16, 2004, the Fords filed a motion to extend the time to amend the petition and to retain the case on the court’s docket. In their motion, the Fords contended that they missed the deadline due to their counsel’s inadvertence in failing to calendar the deadline. Thus, they acknowledged that they failed to timely replead but asked the court not to dismiss their case because their failure was due to accident or mistake. The Fords filed a first amended petition on June 23, 2004.

At the hearing on the Fords’ motion, the Fords’ attorney testified that during the nine-month period, the Fords and appel-lees were trying to work out discovery issues. In addition, he testified that this case was also the subject of an ongoing workers’ compensation claim in Louisiana and that the Louisiana case had taken precedence over this case since the beginning of 2004. Counsel did not discover that the deadline had been missed until June 16, when he received a copy of a letter from opposing counsel to the trial court asking the court to sign a judgment of dismissal.

Appellees’ counsel “stipulate[d][to] mistake within the Craddock standard,” but stated that “[t]he only reason we are here today is they [the Fords] still have not pleaded in conformity with the order granting the special exceptions.” Specifically, he contended that the untimely amended petition did not state the allegedly defective products with sufficient specificity and asked the court to, “at a minimum, dismiss[ ] ... the claims as they relate to the product allegations.”

The trial court determined that the case had been dismissed automatically on June 5, 2004 “due to [the Fords’] failure to replead their Petition” and signed an order dismissing the case without prejudice.

Analysis

In their first, second, and third issues, the Fords claim that the trial court abused its discretion in sustaining the special exceptions and in dismissing the case.

Review of a trial court’s dismissal of a case based on the grant of special exceptions requires examination of two distinct rulings: 1) the decision to sustain the special exceptions; and 2) the decision to dismiss the cause of action. Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex.App.-Corpus Christi 2002, pet. denied). If the decision to sustain the special exceptions was proper, we then review whether the decision to dismiss was appropriate. Id. An appellant must specifically challenge both rulings or face waiver of the respective issue not challenged. Id. Thus, we will initially address the Fords’ first issue challenging the trial court’s decision to grant appellees’ special exceptions.

Our supreme court has held that Texas follows a “fair notice” standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant.... “A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense.”

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex.2000) (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982)); see Tex.R. Civ. P. 45, 47. A party may object to a defect of form or substance in a pleading by special exceptions, which must “point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to.” Tex.R.Civ. P. 90, 91.

We review a trial court’s order sustaining special exceptions for abuse of discretion. Mowbray, 76 S.W.3d at 678. The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles or whether the act was arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A trial court has broad discretion in ruling on special exceptions. Mowbray, 76 S.W.3d at 678-79.

Appellees’ first special exception objected to the Fords’ failure to state the maximum amount of monetary damages sought in their petition. This is a proper special exception; therefore, the trial court did not abuse its discretion in sustaining it. See Tex.R. Crv. P. 47; McCaskell v. Methodist Hosp., 856 S.W.2d 519, 520 (Tex.App.-Houston [1st Dist.] 1993, no writ).

Appellees’ second special exception complains that the Fords’ original petition does not give fair notice of the Fords’ claims against Jones because it does not allege any facts upon which Jones would be liable in his individual capacity for actions taken in his official capacity as president of Performance Aircraft, nor does it state any theory upon which the Fords seek to hold Jones liable in an individual capacity. The only places in which Jones is named in the original petition are the preamble, the paragraph providing his address for service, and the closing asking for a trial. Although the original petition refers to “Defendants” throughout, the introduction to the part of the negligence paragraph setting out specific acts and omissions states that “Defendant Performance Aircraft Services, Inc. and its servants, employees and agents, acting within the course and scope of their employment” were negligent with respect to the listed acts and omissions. Nothing in the original petition indicates on what basis the Fords sought to impose liability on Jones in his individual capacity. Cf. Schlueter v. Carey, 112 S.W.3d 164, 169 (Tex.App.-Fort Worth 2003, pet. denied) (liberally construing pleading alleging that businesses were owned by same person and had not been operated as separate entities as alleging liability under alter ego theory in absence of special exception). We hold that the trial court did not abuse its discretion in sustaining appellees’ second special exception.

Appellees’ third special exception contends that the Fords’ original petition does not give fair notice of the products that the Fords claim are defective; thus, appellees have no way of notifying the manufacturers of those products that a strict products liability case has been filed against appellees. See Tex. Civ. Peac. & Rem.Code Ann. § 82.002 (Vernon 2005) (providing for indemnification of seller of defective products by manufacturer). Knowing the specific products that the Fords allege appellees were negligent in exposing Gary to is information necessary to appellees’ ability to defend against the allegation. For instance, appellees might contend that they did not use the alleged products. In addition, to obtain indemnification from the manufacturers of the products, appellees would need to know which products the Fords allege caused Gary’s chemical sensitivities so that they could identify the manufacturers. Accordingly, we hold that the trial court did not abuse its discretion in sustaining appellees’ third special exception. We overrule the Fords’ first issue.

Having determined that the trial court did not abuse its discretion in' sustaining appellees’ special exceptions, we next address whether the trial court abused its discretion in dismissing the case. A trial court may not dismiss a case after sustaining special exceptions without first giving the nonexcepting party an opportunity to amend its pleadings. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998); Marts v. Transp. Ins. Co., 111 S.W.3d 699, 706 (Tex.App.-Fort Worth 2003, pet. denied). The nonexcepting party may then either 1) amend the pleadings to cure the defect or 2) stand on the pleadings and test the trial court’s decision on appeal.' Mowbray, 76 S.W.3d at 678. If the pleader fails or refuses to amend the pleading, the trial court may dismiss the case. Holt v. Reproductive Servs., Inc., 946 S.W.2d 602, 604 (Tex.App.-Corpus Christi 1997, writ denied); Cole v. Hall, 864 S.W.2d 563, 566 (Tex.App.-Dallas 1993, writ dism’d w.o.j.) (en banc). If the remainder of the pleading does not state a cause of action, the trial court does not err in dismissing the entire case. Mowbray, 76 S.W.3d at 678; Cole, 864 S.W.2d at 566. The right to amend does not extend to the privilege of multiple opportunities to amend in the face of repeated grants of special exceptions. Mowbray, 76 S.W.3d at 678.

The Fords contend the trial court abused its discretion in dismissing the case because it did not attempt lesser sanctions first and because they filed a first amended petition after the nine-month deadline but before the trial court signed an order of dismissal. We disagree.

This case is very similar to that of Cruz v. Morris, 877 S.W.2d 45 (Tex.App.-Houston [14th Dist.] 1994, no writ). In that case, the trial court sustained the appel-lee’s special exception challenging the failure of the appellant’s pleading to state the maximum amount of damages claimed. Id. at 46. The trial court ordered the appellant to replead within thirty days or face dismissal of the damages parts of her pleading. Id. The appellant failed to file an amended pleading within the thirty-day period, and the trial court dismissed the sections of her pleadings related to damages. Id.

One day after the dismissal, the appellant filed an amended pleading setting out specific damages amounts. Id. She later filed a motion to reinstate the parts of her pleading that the trial court had stricken, arguing that her failure to replead was “due to clerical error and attorney oversight, not a conscious intent to disregard the order.” Id. The trial court denied the motion. Id. The appellees did not file a motion to dismiss the appellant’s pleadings until over a year later when the appellant filed a first supplemental petition increasing the damages amounts she was claiming. Id. At that time, the appellees moved to dismiss both petitions, and the trial court granted the motion because without any damages allegations, the appellant’s pleadings failed to state a cause of action. Id.

The Houston Fourteenth District Court of Appeals held that “the trial court’s actions, while perhaps severe, [were] within the bounds of her discretion in managing her docket.” Id. at 47. The appellate court noted that the trial court gave the appellant notice that it would strike the damages portions of the pleading if she did not comply with the repleading deadline, that the appellant did not object to the length of time given to replead, and that the trial court had fulfilled its obligation to allow the appellant an opportunity to re-plead. Id. at 48. The appellate court stated, “Although we may disagree with the severity of the action, we cannot say that such action is so arbitrary as to warrant our finding an abuse of discretion.” Id.

Later, the Houston Fourteenth court relied on Cruz in Continental Casing Corp. v. Siderca Corp., 38 S.W.3d 782, 790-91 (Tex.App.-Houston [14th Dist.] 2001, no pet.), in which it held that the trial court did not abuse its discretion in striking Continental’s second and third petitions for failure to replead within seven days as ordered by the trial court. Although Continental argued that its untimely replead-ing should be excused because the trial court’s order giving it seven days to re-plead was undated and “did not affirmatively state when the order was issued,” the appellate court held that it was not excused because “Continental’s counsel was chargeable with notice” of the date the order was issued. Id. at 790. Thus, the appellate court held that the trial court did not abuse its discretion in striking Continental’s petitions. Id. at 791.

We find the facts of this case to be similar to those of Cruz and Continental. Although in Cruz the appellant filed her late repleading one day after the trial court had already entered an order dismissing the case, we do not consider that difference dispositive. See Cruz, 877 S.W.2d at 46. The Fords’ first amended petition — although filed before the trial court signed a dismissal order — was untimely pursuant to the trial court’s re-pleading order, which specifically stated that the case would be dismissed automatically if the Fords did not meet the deadline. Thus, the trial court had discretion whether to consider the late-filed amended petition. See Continental, 38 S.W.3d at 790-91.

In addition, we note that the Fords’ first amended petition omitted Jones as a party and did not include a maximum amount of damages claimed as to their strict products liability cause of action. Thus, their first amended petition was subject to further special exceptions and also evidenced an intent to nonsuit the Fords’ claims against Jones individually. See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex.1972) (stating rule that amended petition omitting a defendant operates as a voluntary dismissal as to that party); CIGNA Ins. Co. v. TPG Store, Inc., 894 S.W.2d 431, 434 (Tex.App.Austin 1995, no writ) (same).

Accordingly, we hold that the trial court did not abuse its discretion in dismissing the case after the Fords failed to replead within the nine-month deadline set by the trial court. We overrule the Fords’ second and third issues.

In their fourth issue, the Fords contend that the trial court’s dismissal of their case violated theft due process rights under article I, sections 13 and 19 of the Texas Constitution. Article I, section 13, the “open courts provision,” guarantees that persons bringing common-law claims will not unreasonably or arbitrarily be denied access to the courts. Tex. Const, art. I, § 13; Gilbert v. Bartel, 144 S.W.3d 136, 145 (Tex.App.-Fort Worth 2004, pet. denied). “The interpretation of this clause has been limited to considering the effect a statutory remedy has on a common law cause of action.” Sage v. Wong, 720 S.W.2d 882, 885 (Tex.App.-Fort Worth 1986, writ refd n.r.e.). It guards against legislative bodies arbitrarily withdrawing all legal remedies from a person having a cause of action well established and well defined in the common law. Id; see also Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001) (“[T]he Legislature cannot abrogate the right to bring a well-established common-law claim without showing that the statute’s objectives and purposes outweigh denying the constitutionally guaranteed right of redress.”).

To invoke the open courts provision, a litigant must show that a statute has restricted a cognizable common law cause of action and that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. Sage, 720 S.W.2d at 885. The Fords have not shown that any statute restricts their causes of action in this case. The trial court’s dismissal was based on the Fords’ own actions in failing to replead. Thus, the Fords have not shown a violation of article I, section 13 of the Texas Constitution. See id at 885-86.

The Fords also contend that the trial court denied them due process under article I, section 19 of the Texas Constitution, citing TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918-19 (Tex.1991). In analyzing whether the trial court abused its discretion in ordering death penalty sanctions for discovery abuse, the court in TransAmerican cited a United States Supreme Court case holding that “[t]here are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause.” Id at 918 (quoting Societe Internationale Pour Participations Industr-ielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 209-10, 78 S.Ct. 1087, 1094, 2 L.Ed.2d 1255 (1958)). The Fords were not denied notice or hearing. The record does not contain any evidence that the Fords challenged appellees’ special exceptions. Additionally, like the appellant in Cruz, the Fords did not object on the record to the trial court’s order giving them nine months to replead. Furthermore, the trial court considered and held a hearing on the Fords’ motion to reinstate. .We hold that the Fords were not denied due process in violation of the Texas Constitution. We overrule the Fords’ fourth issue.

Having overruled the Fords’ four issues, we affirm the trial court’s judgment.

      . Gary was employed by Northrop Grumman, and Performance Aircraft was performing contract work in the hangar for Northrop Grumman.

      . They later filed an amended motion, which requested the same relief and also added a request for a new trial to the extent the case was deemed automatically dismissed.

      . Appellees did not challenge this assertion.