author: Opinion By Justice LANG.

text:
    Cheri DUNCAN-HUBERT, Appellant, v. Mayor Steve MITCHELL, Appellee.
    No. 05-09-00018-CV.
    Court of Appeals of Texas, Dallas.
    March 18, 2010.
    Rehearing Overruled May 17, 2010.

      Billy R. McGill, Dallas, TX, for Appellant.
    Amber Leah Slayton, Nichols, Jackson, Dillard, Hager & Smith, LLP, Dallas, TX, for Appellee.
    Before Justices O’NEILL, LANG, and MYERS.
   OPINION

Opinion By Justice LANG.

This case involves an election contest pertaining to a special election on proposed amendments to a city charter. Appellant Cheri Duncan-Hubert appeals the trial court’s order granting appellee Mayor Steve Mitchell’s motion for no-evidence summary judgment. Duncan-Hubert asserts two issues on appeal: (1) “[t]he trial court erred in granting summary judgment in favor of [Mitchell]” and (2) “[t]he trial court erred in granting summary judgment in favor of [Mitchell] because a genuine issue of material fact exists with regard to whether the election irregularities in this case were such as to render it impossible to determine the will of a majority of voters.”

For the reasons below, we decide in favor of Duncan-Hubert on her two issues. We reverse the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 27, 2007, the city council of the City of Richardson passed an ordinance requiring a special election on three proposed city charter amendments to be held on the uniform election date of November 6, 2007. All three of the propositions passed in the election.

On December 14, 2007, Duncan-Hubert, a Richardson resident, filed this lawsuit against Mitchell in his capacity as mayor of Richardson. In her May 5, 2008 first amended petition, Duncan-Hubert contended Mitchell (1) held the election at issue without first obtaining a petition signed by the requisite number of qualified voters; (2) did not publish notice of the election in a newspaper of general circulation in each of two successive weeks as required by the Texas Local Government Code; (3) endorsed and supported a “political advertisemeni/mailing” purporting to be from “Richardson Citizens for Charter Change” when, in actuality, the true source of the mailing was the Richardson Chamber of Commerce; (4) may have used public funds to fund all or part of the mailing from “Richardson Citizens for Charter Change”; and (5) published misleading statements to the voters of Richardson about the proposed charter amendments. Duncan-Hubert asserted a single cause of action in which she alleged in relevant part (1) the outcome of the November 6, 2007 election is not the true outcome because Mitchell “engaged in fraud, illegal conduct or made a mistake” and (2) “the election would have had a different result had the fraud, illegal conduct and/or mistakes [of Mitchell] not occurred” or, alternatively, “such fraud, illegal conduct and/or mistakes renders it impossible to determine the will of a majority of Richardson voters.”

Mitchell filed original and amended answers in which he, in relevant part, generally denied Duncan-Hubert’s claims and specially excepted to Duncan-Hubert’s first amended petition for “failure to state a cause of action for an election contest and failure to state a claim upon which relief can be granted.” Mitchell stated in his July 25, 2008 amended answer

[Duncan-Hubert] has failed to allege the essential elements of such cause of action and to plead facts in support of these elements. In order to maintain an election contest based on fraud or illegal conduct, a contestant must allege and prove that a different result would have been reached or irregularities in the conduct of an election were such as to render it impossible to determine the will of the majority of the voters participating. [Duncan-Hubert’s] amended petition alleges that different results would have been reached had the alleged fraud not taken place or irregularities in the conduct of the election were such as to render it impossible to determine the will of the majority of the voters participating. [Duncan-Hubert], however, does not plead facts to support how or why such is true.

(citations omitted).

On August 7, 2008, Mitchell filed a “No-Evidence Motion for Summary Judgment” pursuant to rule 166a(i) of the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 166a(i). As the sole basis for that motion, Mitchell contended Duncan-Hubert “has no evidence that different results would have been reached or that irregularities in conduct of an election were such as to render it impossible to determine the will of the majority of the voters participating.” Mitchell asserted that because Duncan-Hubert had “no evidence whatsoever to support this required element of her cause of action,” he was entitled to summary judgment against Duncan-Hubert as a matter of law.

Duncan-Hubert filed a response to Mitchell’s motion for no-evidence summary judgment on September 22, 2008. In her response, Duncan-Hubert stated she was relying on summary judgment evidence consisting of affidavits, and the exhibits attached thereto, of herself, attorney Billy McGill, and experts Daniel Powers and Nathan Morgan. Duncan-Hubert asserted in relevant part that (1) Powers is an assistant professor of sociology at the University of Texas at Austin and has authored several books and peer-reviewed articles relating to applied statistics and research methods and (2) Morgan served as a election judge in the election at issue and has educational training in the fields of market research, statistics, and behavioral science. According to Duncan-Hubert, both Powers and Morgan opined that “from a statistical analysis standpoint, it would be impossible to predict or determine with any reasonable degree of accuracy, even with voter polling data, whether the outcome of the election would have been different had the irregularities complained about [in this case] not occurred.” Duncan-Hubert contended the opinions expressed by Powers and Morgan “are more than sufficient to raise a fact issue with regard to whether the election irregularities in this case were such as to render it impossible to determine the will of a majority of the Richardson voters.”

On September 25, 2008, Mitchell filed objections to Duncan-Hubert’s summary judgment evidence and a motion to strike the affidavits of Powers and Morgan. Mitchell asserted in relevant part that Powers (1) was not timely designated by Duncan-Hubert as an expert witness, (2) did not offer a reliable opinion, (3) did not disclose the facts or data underlying his opinion, and (4) is not qualified as an expert. With respect to Morgan, Mitchell asserted objections substantially similar to those described above and, in addition, contended Morgan’s affidavit (1) “includes information not based on personal knowledge and that is conclusory,” (2) contains legal and/or factual conclusions not supported by facts, and (3) “contains hearsay and information not based on personal knowledge.”

After a September 29, 2008 hearing, the trial court granted Mitchell’s motion for no-evidence summary judgment in an order dated October 7, 2008. Duncan-Hubert filed a timely motion for new trial on November 11, 2008. The record is silent as to the disposition of that motion. This appeal timely followed.

II. NO-EVIDENCE SUMMARY JUDGMENT

A. Standard of Review

We review a trial court’s decision to grant summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard of review that is applied when reviewing a directed verdict. Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 882 (Tex.App.-Dallas 2006, no pet.). Under that standard, we must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. RTLC AG Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824, 833 (Tex.App.-Dallas 2006, no pet.). We review all of the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered and disregard all contrary evidence and inferences. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005)); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); RTLC AG Prods., Inc., 195 S.W.3d at 829. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. See RTLC AG Prods., Inc., 195 S.W.3d at 829. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006) (citing City of Keller, 168 S.W.3d at 822); Merrell Dow Pharms., Inc., 953 S.W.2d at 711; RTLC AG Prods., Inc., 195 S.W.3d at 829.

B. Applicable Law

A court trying an election contest shall attempt to ascertain whether the out come shown by the final canvass was not the true outcome because illegal votes were counted or because an election official or other person officially involved in the administration of the election (1) prevented eligible voters from voting, (2) failed to count legal votes, or (3) engaged in other fraud or illegal conduct or made a mistake. Tex. Elec.Code ÁNN. § 221.003(a) (Vernon 2010). To set aside the outcome of an election, the contestant must prove by clear and convincing evidence that a violation of the election code occurred and such violation materially affected the outcome of the election. McCurry v. Lewis, 259 S.W.3d 369, 372-73 (Tex.App.-Amarillo 2008, no pet.). The outcome of an election is “materially affected” when a different and correct result would have been reached in the absence of irregularities or “irregularities in the conduct of the election render it impossible to determine the majority of the voters’ true will.” Id. at 373; see also Gonzalez v. Villarreal, 251 S.W.3d 763, 773, 777-78 (Tex.App.-Corpus Christi 2008, pet. denied); Ware v. Crystal City Indep. Sch. Dist., 489 S.W.2d 190, 191-92 (Tex.Civ.App.-San Antonio 1972, writ dism’d).

C. Analysis

In the argument section of her “Brief of Appellant,” Duncan-Hubert asserts the trial court erred by granting summary judgment in favor of Mitchell because a genuine issue of material fact exists regarding whether the election irregularities in this case were such as to render it impossible to determine the will of a majority of voters. According to Duncan-Hubert, the expert testimony offered by her in response to Mitchell’s no-evidence summary judgment motion “raised genuine issues of material fact with regard to whether it is impossible to go back and determine (1) whether voter turnout would have been greater if the notice and petition requirements had been met, and how a larger turnout would have affected the election outcome, and (2) the extent to which the misleading and deceptive article and mail out improperly influenced voters who voted in the election, and whether they would have voted for the measure had they not been mislead [sic].”

Mitchell responds that although Duncan-Hubert submitted evidence in her response to his motion for no-evidence summary judgment, she failed to establish a genuine issue of material fact existed. Mitchell asserts none of Duncan-Hubert’s submitted evidence constitutes “competent” summary judgment evidence that “different results would have been reached or that irregularities in the conduct of an election were such as to render it impossible to determine the will of the majority of the voters participating.” Specifically, Mitchell contends (1) the affidavits of Duncan-Hubert and McGill “focus on the alleged violations, not any impact on the election” and (2) “[Powers and Morgan] fail as expert witnesses; [Duncan-Hubert] never designated either as an expert pursuant to the Texas Rules of Civil Procedure, both fail to qualify as experts, and neither affiant’s opinions are reliable.” Further, Mitchell asserts in footnotes in his appellate brief that Duncan-Hubert failed to address his objections to her summary judgment evidence in her brief on appeal “despite the trial court ... impliedly ruling” on such objections, and on his motion to strike the affidavits of Powers and Morgan, by granting his motion for no-evidence summary judgment. Therefore, Mitchell argues, Duncan-Hubert “has waived any right to complain about this issue.” According to Mitchell, “the rules of law and evidence bar the Court from giving weight to the only evidence [Duncan-Hubert] offered to prove that the alleged vio!ations(s) of the Election Code materially affected the outcome of the election.”

In a reply brief in this Court, Dunean-Hubert asserts the trial court did not rule on Mitchell’s objections to her summary judgment evidence and such evidence is part of the summary judgment proof for purposes of this appeal. Further, Dunean-Hubert argues (1) all objections made by Mitchell as to the form of the summary judgment evidence, “including without limitation hearsay, lack of personal knowledge, and statements of opinion,” were waived by Mitchell’s failure to obtain a ruling on such objections and (2) Mitchell’s objections as to substance are without merit.

1. Implied Rulings on Objections and Motions to Strike

a. Applicable Law

Rule 33.1 of the Texas Rules of Appellate Procedure provides in relevant part that as a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion that was sufficiently specific and the trial court (1) ruled on the request, objection, or motion either expressly or implicitly or (2) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Tex.R.App. P. 33.1(a); see also Unifund CCR Partners v. Jackson, No. 05-07-01226-CV, 2009 WL 3019736, at *1 (Tex. App.-Dallas Sept. 23, 2009, no pet.) (mem. op.). Pursuant to rule 33.1, the party objecting to summary judgment evidence has the burden to obtain a ruling on that party’s objections. Trusty v. Stryhorn, 87 S.W.3d 756, 760 (Tex.App.-Texarkana 2002, no pet.). However, that burden is satisfied if (1) the record affirmatively indicates that the trial court ruled on the objections to the summary judgment evidence in granting summary judgment, or (2) the grounds for summary judgment and the objections to the summary judgment evidence are of such a nature that the granting of summary judgment necessarily implies a ruling on the objections. Id.

b. Application of Law to Facts

The trial court’s order granting Mitchell’s motion for no-evidence summary judgment stated in relevant part as follows:

On October 7th, 2008, the Court considered Contestee Mayor Steve Mitchell’s No-Evidence Motion for Summary Judgment. After considering the motion, the response and all other evidence on file, the Court
FINDS there is no genuine issue of material fact. It is therefore ORDERED, ADJUDGED AND DECREED that Contestee Mayor Steve Mitchell’s No-Evidence Motion for Summary Judgment is hereby GRANTED in its entirety; that judgment is hereby entered in favor of Mayor Steve Mitchell on all of Contestant Cheri Duncan-Hubert’s claims and causes of action; that Contestant Cheri Duncan-Hubert take nothing against Mayor Steve Mitchell, and that Mayor Steve Mitchell recover all taxable court costs in his behalf expended of and from Contestant Cheri Duncan-Hubert.
IT IS FURTHER ORDERED that all relief requested not expressly granted herein is denied.

(emphasis original).

Mitchell contends he preserved his objections to Duncan-Hubert’s summary judgment evidence “by timely filing them with the trial court,” and the trial court “implicitly granted” his objections and his motion to strike the affidavits of Powers and Morgan by entering an order granting his motion for no-evidence summary judgment. However, in each of the two cases cited by Mitchell as direct support for that proposition, the appellate court focused specifically on whether an implicit ruling by the trial court was demonstrated by the record. See Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.App.-Fort Worth 1999, pet. denied) (where trial court’s order granting summary judgment stated court had reviewed all “competent” evidence, record showed trial court had implicitly ruled on objections to summary judgment evidence); Columbia Rio Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 396 (Tex.App.Corpus Christi 2000, no pet.) (concluding implied ruling on objections to summary judgment evidence was shown by record where objections were explicitly overruled at hearing). In this case, nothing in the record indicates the trial court implicitly sustained Mitchell’s objections. The record shows that in an October 2, 2008 letter brief, Mitchell’s counsel stated, “Contestee [Mitchell] requests that the Court consider its objections, which were timely filed and preserved, upon giving Contestant [Duncan-Hubert] a reasonable opportunity to respond orally, in writing, or both, as determined by the Court.” The trial court’s order states the trial court “considered” the motion, the response, and “all other evidence on file.” However, such language does not indicate a ruling. See Trusty, 87 S.W.3d at 761 (“[n]o case has held that a trial court implicitly sustained objections to summary judgment proof when the record and the court’s order indicated only that the trial court considered the objections”). Further, if the trial court overruled Mitchell’s objections and denied the motion to strike, the trial court still could have granted summary judgment if it found, whether correctly or incorrectly, that the evidence was insufficient to create a fact question precluding summary judgment. Id.; see also Mead v. RLMC, Inc., 225 S.W.3d 710, 714 (Tex.App.-Fort Worth 2007, pet. denied) (distinguishing Frazier from cases where record did not demonstrate implied ruling). Consequently, we cannot infer that, merely by granting Mitchell’s motion for no-evidence summary judgment, the trial court necessarily sustained the objections at issue and granted the motion to strike. See Trusty, 87 S.W.3d at 761; Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.3d 838, 842-43 (Tex.App.-Dallas 2003, no pet.) (no ruling implied where record did not show trial court sustained objections to summary judgment evidence); see also Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex.App.-San Antonio 2000, no pet.) (trial court did not impliedly overrule objections to summary judgment evidence by including “Mother Hubbard” clause in summary judgment order).

2. Mitchell’s Objections to Summary Judgment Evidence

a. Applicable Law

i. Substance Versus Form

“Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.” City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex.2009). Accordingly, objections to the substance of summary judgment affidavits may be raised for the first time on appeal. Yancy v. United Surgical Partners Int’l, Inc., 170 S.W.3d 185, 191 (Tex.App.-Dallas 2005), aff'd, 236 S.W.3d 778 (Tex.2007); Brown v. Brown, 145 S.W.3d 745, 751 (Tex.App.-Dallas 2004, pet. denied); Wrenn v. G.A. T.X. Logistics, Inc., 73 S.W.3d 489, 498 (Tex.App.-Fort Worth 2002, no pet.); see also Trusty, 87 S.W.3d at 764. By contrast, defects in the form of summary judgment affidavits cannot constitute the basis for affirming summary judgment unless the party seeking to rely on such defects objects to those defects in the trial court and obtains a ruling from the trial court or objects to the trial court’s refusal to rule. See Yancy, 170 S.W.3d at 191; Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex.App.-Dallas 2004, no pet.); Lection v. Dyll, 65 S.W.3d 696, 703 (Tex.App.-Dallas 2001, pet. denied); Choctaro Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 241 (Tex.App.-Waco 2003, no pet.); Trusty, 87 S.W.3d at 763; Wrenn, 73 S.W.3d at 498.

ii. Expert Testimony

“If scientific, technical, or other specialized knowledge will assist the trier of fact to ündérstand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702. In accordance with rule 702; expert testimony is admissible if (1) the expert is qualified and (2) the testimony is relevant and based on a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995); see also Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.2006); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). “The party sponsoring the expert bears the burden of showing the expert’s testimony is admissible.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex.2006); see also Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex.1998); Robinson, 923 S.W.2d at 556. “[N]o difference obtains between the standards for evidence that would be admissible in a summary judgment proceeding and those applicable at a regular trial.” United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997).

The reliability requirement focuses on the principles, research, and methodology underlying an expert’s con-elusions. See Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002). Scientific evidence that is not grounded in the methods and procedures of science is no more than subjective belief or unsupported speculation. Robinson, 923 S.W.2d at 557 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

Under Texas Rule of Evidence 703, “[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing.” Tex.R. Evid. 703. Texas Rule of Evidence 705, titled “Disclosure of Facts or Data Underlying Expert Opinion,” provides in relevant part as follows:

(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert’s reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.
(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion is inadmissible.

Tex.R. Evid. 705 (emphasis original); see also Choctaw Props., L.L.C., 127 S.W.3d at 242 (summary judgment evidence is considered “conclusory” if it does not provide underlying facts to support conclusion).

b. Application of Law to Facts

In considering Mitchell’s objections, we begin with his objections to the expert testimony of Powers. First, Mitchell asserts Powers’s affidavit should be rejected from consideration as summary judgment evidence because Duncan-Hubert did not designate Powers as a testifying expert witness. Duncan-Hubert responds that an alleged failure to designate expert witnesses does not constitute a substantive objection and therefore any such objection was waived by Mitchell’s failure to obtain a ruling in the trial court. Failure to timely designate a testifying expert has been recognized as a defect of form to which a party must object and obtain a ruling to preserve error. See Trusty, 87 S.W.3d at 764. Accordingly, we conclude Mitchell’s objection regarding failure to designate Powers as an expert witness has been waived. See Thompson, 127 S.W.3d at 450 (failure to obtain ruling on form objection constitutes waiver of that objection for purposes of appeal).

Second, Mitchell contends Powers failed to offer a reliable opinion. Specifically, Mitchell asserts Powers (1) acknowledges he is “unaware of the data available”; (2) qualifies that his opinion is based on the data he has available, which is limited solely to what Duncan-Hubert told him; (3) assumes Duncan-Hubert’s allegations are true; and (4) opines about theoretical data and what factors would have to be analyzed if he were able to collect such data. According to Mitchell, there are “no indicia of reliability” in Powers’s proffered theories and Powers’s opinions “amount to nothing more than sheer speculation.”

Duncan-Hubert responds that Powers’s opinions are “based on a reliable methodology and reliable data.” Duncan-Hubert argues that Powers “explained in detail in his affidavit why, under the facts and circumstances of the election, statistical methods could not be used to determine whether the outcome of the election would have been different in the absence of the election irregularities alleged.”

“[W]hen a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis.” Pollock, 284 S.W.3d at 817 (quoting Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.2004)). “However, when the challenge is restricted to the face of the record — for example when expert testimony is speculative or conclusory on its face — then a party may challenge the legal sufficiency of the evidence even in the absence of any objection to its admissibility.” Id,.; see also Arkoma Basin Exploration Co., Inc. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 388 (Tex.2008) (acknowledging that “some objections will fall close to the line between these categories”). Here, Mitchell specifically contends Powers’s opinions “amount to nothing more than sheer speculation.” Therefore, Mitchell may raise this objection for the first time on appeal. See Pollock, 284 S.W.3d at 817; Arredondo v. Rodriguez, 198 S.W.3d 236, 240 n. 2 (Tex.App.-San Antonio 2006, no pet.) (objection to speculative nature of summary judgment evidence could be raised for first time on appeal) (citing Coastal Transp. Co., Inc., 136 S.W.3d at 233); see also In re Burnett, No. 09-09-00009-CV, 2009 WL 5205387, at *2 (Tex.App.-Beaumont Dec. 31, 2009, no pet.) (mem. op.) (appellant’s complaint that analytical gaps in expert’s opinion deprived opinion of probative value did not require preservation in trial court).

The record shows that, rather than stating he is “unaware of the data available,” Powers testified in part in his affidavit as follows:

First, at this point there is no polling data or other data that exists that I am aware of that would enable me to conduct a statistical analysis and use statistical tests to infer whether the outcome of the election may have been different if the alleged violations not [sic] occurred. For that reason, with the existing available data, I would not be able to predict, determine, or make inferences using a statistical analysis about what the outcome of the election would have been in the absence of the alleged statutory violations.

Then, Powers (1) identified the types of data that, if collected, would enable him to address the issue of whether the outcome of the election might have been different in the absence of the alleged misleading advertisement and publication, and (2) stated that analyzing the effect of the failure to comply with notice and petition requirements “is more problematic,” as such analysis would involve factors that are “very difficult if not impossible to measure.” Powers described such factors in detail and identified the difficulties as to collecting and measuring the necessary data. He concluded, “Considering all of the reasons and factors addressed above, it is my opinion that from a statistical analysis standpoint, it would be impossible to predict or determine with any reasonable degree of accuracy, even with voter polling data, whether the outcome of the election would have been different [absent the alleged violations].” Mitchell does not explain or discuss how Powers’s assumption that Duncan-Hubert’s allegations are true affects the reliability of Powers’s opinions, which do not concern, and are not offered to prove, the truth of those allegations. Based on this record, we cannot sustain Mitchell’s objection regarding the reliability of Powers’s opinions. Cf. Arkoma Basin Exploration Co., Inc., 249 S.W.3d at 389 (concluding expert’s testimony regarding his calculations was not unreliable).

Third, Mitchell contends Powers “did not disclose the facts or data” underlying his opinion. In his appellate argument as to this objection, Mitchell asserts Powers (1) acknowledged that he is “unaware of the data available”; (2) qualified that his opinion is based on the available data, which is limited to what Duncan-Hubert told him; (3) did not review any documents, perform any independent collection of data, or make any attempt to verify what Duncan-Hubert told him; (4) provided “no basis whatsoever” for his proffered opinion; and (5) failed to explain the basis for his assertion that no statistical data could be collected. We construe this objection to assert that Powers’s testimony is conclusory. See Choctaw Props., L.L.C., 127 S.W.3d at 242 (summary judgment evidence is considered “conclusory” if it does not provide underlying facts to support conclusion). Accordingly, this objection may be raised for the first time on appeal. See Thompson, 127 S.W.3d at 450 (“An objection that an affidavit is con-clusory is an objection to the substance of the affidavit and may be raised for the first time on appeal”).

As described above, rather than stating that he is “unaware of the data available,” Powers stated he is not aware of any data that would enable him to conduct a statistical analysis regarding the effect of the alleged violations. Further, we cannot agree with Mitchell that Powers provided “no basis whatsoever” for his opinion. Powers stated in his affidavit that through discussions and correspondence with Duncan-Hubert and her attorney, he had become familiar with the issues in this lawsuit, the three propositions involved, and the violations alleged. Powers’s affidavit indicates that his identification of the types of data that would be necessary to conduct an analysis regarding the election outcome was based on such alleged violations. “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing.” See Tex.R. Evid. 703; see also Tex.R. Evid. 705 (“The expert may testify in terms of opinion or inference and give the expert’s reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise.”). With respect to Powers’s assumption that Duncan-Hubert’s allegations are true, Mitchell does not explain or discuss how such assumption negates any basis for Powers’s opinions, which do not concern, and are not offered to prove, the truth of those allegations. Finally, the record does not support Mitchell’s contention that Powers failed to explain the basis for his assertion that no statistical data could be collected regarding the factors-at issue. Rather, as described above, Powers identified in detail in his affidavit the critical factors to be analyzed and considered and the difficulties in collecting the data necessary to do so. Because Powers testified regarding the facts supporting his opinion and explained how he reached that opinion, we conclude Powers’s affidavit was not conclu-sory. Cf. Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464, 467 (Tex.App.-Texarkana 1998, pet. denied) (affidavit that sufficiently set out relevant facts and expert’s conclusions based on those facts was competent summary judgment proof).

Fourth, we address Mitchell’s objection that Powers’s status as an associate professor of sociology does not qualify him to present expert testimony as to election outcomes. Specifically, Mitchell argues as follows:

The majority of papers Powers co-authored concern sociological issues involving minoi’ities and adolescents. His works also explore the effect of religious affiliation, church attendance, smoking and marital quality on societal behavior. The majority of his grants relate to aging, child health and human development. [Duncan-Hubert] has not proven that Powers is qualified to offer statistical analysis with respect to an alternative outcome to this election.

(citations to record omitted). Duncan-Hubert responds that Powers’s “extensive background in applied statistics” qualifies him to undertake the task of determining whether statistical methods could be used to predict whether the outcome of the election might have been different had the alleged violations not occurred.

Mitchell’s objection that Powers is not adequately qualified to opine on the subject at issue is one as to form that must be raised in the trial court. See Adams v. State Farm Mut. Auto. Ins. Co., 264 5.W.3d 424, 429 (Tex.App.-Dallas 2008, pet. denied) (“An objection to an expert’s qualifications must be raised in the trial court in order to preserve error.”); Sparks v. Booth, 232 S.W.3d 853, 863 (Tex.App.-Dallas 2007, no pet.) (“A party must make a timely objection to an expert’s qualifications to preserve for appeal his contention that the expert was unqualified.”); see also Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 143-44 (Tex.2004) (concluding objection to qualifications of expert witness was not preserved for appeal where not raised in trial court); Paradigm Oil, Inc. v. Retamco Operating, Inc., 242 S.W.3d 67, 74 n. 4 (Tex.App.-San Antonio 2007, pet. denied) (“an objection to an expert’s qualifications must be preserved by objection or it is waived”) (citing Nissan Motor Co. Ltd., 145 S.W.3d at 143-44). Because the trial court did not rule on Mitchell’s objection regarding Powers’s qualifications, that objection is not preserved for our review. See Thompson, 127 S.W.3d at 450.

Mitchell asserts no other objections to Powers’s affidavit. In light of the foregoing conclusions, we consider the affidavit of Powers as summary judgment evidence. See Thompson, 127 S.W.3d at 451; Wrenn, 73 S.W.3d at 499; Well Solutions, 32 S.W.3d at 317.

As described above, Powers opines in his affidavit that “it would be impossible to predict or determine with any reasonable degree of accuracy, even with voter polling data, whether the outcome of the election would have been different had [the alleged violations not occurred].” Based on Powers’s affidavit alone, we conclude Duncan-Hubert has presented more than a scintilla of evidence to raise a material issue of fact as to the element of her claim that was the subject of Mitchell’s motion for no-evidence summary judgment. See RTLC AG Prods., Inc., 195 S.W.3d at 829. Accordingly, the trial court’s summary judgment in favor of Mitchell was improper. See id. We need not address the remaining summary judgment evidence or Mitchell’s objections thereto. Duncan-Hubert’s two issues are decided in her favor.

III. CONCLUSION

We conclude that the expert testimony of Powers offered by Duncan-Hubert in response to Mitchell’s no-evidence summary judgment motion raised a genuine issue of material fact regarding whether irregularities in the conduct of the election render it impossible to determine the majority of the voters’ true will. Accordingly, the trial court erred by granting summary judgment in favor of Mitchell. We decide in favor of Duncan-Hubert on her two issues. The trial court’s judgment is reversed and this case is remanded for further proceedings consistent with this opinion.

      . Duncan-Hubert does not provide separate argument for each of her two issues or otherwise address them separately on appeal. See Tex.R.App. P. 38.1(i) (brief must contain a clear and concise argument for the contentions made). However, we construe her appellate argument to address both issues and we consider her two issues together for purposes of this opinion. See Tbx.R.App. P. 38.9 (briefing rules to be construed liberally).

      . The record on appeal contains no reporter’s record of the September 29, 2008 hearing on Mitchell's motion for no-evidence summary judgment.

      . In addition to responding to Mitchell’s arguments regarding the preservation of challenges to the summary judgment evidence, Dunean-Hubert argues for the first time in her reply brief that (1) because Mitchell failed to substantially comply with the law governing notice of a special election, Duncan-Hubert was not required to show that the result of the election would have been different absent the irregularities complained of or that the irregularities were such as to render it impossible to determine the will of a majority of the voters and (2) expert testimony is not necessary in this case because the general experience and common understanding of a layperson would be sufficient to determine the fact issues involved. However, “we do not consider arguments raised for the first time in a reply brief.” Melartin v. CR & R, Inc., No. 14-05-00519-CV, 2009 WL 972484, at *1 n. 1 (Tex.App.-Houston [14th Dist.] Mar. 24, 2009, no pet.) (mem. op.); Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009 WL 483207, at *4 (Tex.App.-Austin Feb. 26, 2009, pet. denied) (mem. op.); Tex.R.App. P. 38.3 (“appellant may file a reply brief addressing any matter in the appellee’s brief”). Accordingly, those arguments present nothing for this Court’s review. See Myan Mgmt. Group, L.L.C. v. Adam Sparks Family Revocable Trust, 292 S.W.3d 750, 754 n. 1 (Tex.App.Dallas 2009, no pet.).

      . In addition, Mitchell directs this Court to "see also ” Clement v. City of Plano, 26 S.W.3d 544, 550 n. 5 (Tex.App.-Dallas 2000, no pet.), disapproved on other grounds by Tel-thorster v. Tennell, 92 S.W.3d 457, 464 (Tex. 2002). In Clement, this Court stated, without discussion, that the trial court had ''implicitly overruled” a nonmovant’s special exceptions to a traditional summary motion. In support of that statement, this Court cited authority for the proposition that error can be preserved “as long as the record indicates in some way that the trial court ruled on the objection either expressly or impliedly.” Id. Mitchell does not address the facts of Clement or explain how that case supports his proposition.

      . In addition, Mitchell contends in his appellate argument regarding this objection that Powers’s theory has not been peer tested or peer reviewed, nor is there any indication that his methodology enjoys wide acceptance in the community. However, Texas law requires an objection to expert testimony to be raised in the trial court if the objection requires the court to evaluate the underlying methodology or technique. See Pollock, 284 S.W.3d at 817; Arkoma Basin Exploration Co., Inc., 249 S.W.3d at 388. Therefore, we conclude Mitchell has waived such contention. See Pollock, 284 S.W.3d at 817; Arkoma Basin Exploration Co., Inc., 249 S.W.3d at 388.

      . The case law demonstrates an objection is one addressing the substance of the testimony when the objection to the insufficiency of the expert’s qualifications is combined with an objection that the expert’s opinion is conclu-sory. See Yancy, 170 S.W.3d at 191 (objections that expert witnesses "were not qualified to testify regarding [patient’s] condition and their statements were nothing more than unsupported conclusions” went to substance of affidavits and could be raised on appeal); Cain, 969 S.W.2d at 467 (objection that affidavit did not list expert’s qualifications and expert’s conclusions were therefore without foundation was objection as to substance and could be raised on appeal); cf. Trusty, 87 S.W.3d at 765 (objection that expert’s affidavit was incompetent because he was not qualified to give opinion construed as substantive objection alleging conclusory nature of affidavit).


source: Caselaw Access Project

author: Opinion by Justice GARZA.

license: Public Domain

text:
    Mariano SALINAS, M.D., Appellant, v. Francisco DIMAS and Norma Benitez Dimas as Next Friends of Nemesio Dimas, a Minor, Appellees.
    No. 13-09-00558-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    March 18, 2010.

      I. Cecilia Garza, Ronald G. Hole, Hole & Alvarez LLP, McAllen, for Appellant.
    Lydia Casso Tummel, Harold Kenneth Tummel, Tummel & Casso, McAllen, for Appellees.
    Before Justices RODRIGUEZ, GARZA, and BENAVIDES.
   OPINION

Opinion by Justice GARZA.

Appellant, Mariano Salinas, M.D., challenges the tidal court’s denial of his motion to dismiss the health care liability claims of appellees, Francisco Dimas and Norma Benitez Dimas, as next friends of Nemesio Dimas, a minor child. By a single issue, Dr. Salinas argues that the trial court should have granted his motion to dismiss because an expert report under chapter 74 of the Texas Civil Practice and Remedies Code cannot be served on a defendant prior to that defendant having answered the lawsuit. See Tf,x. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp.2009). We affirm.

I. Background

The Dimases filed suit against Dr. Salinas on February 6, 2009, alleging that Dr. Salinas “committed acts and/or omissions of negligence and gross negligence in connection with” the obstetrical care and treatment of Norma. The Dimases’ original petition contended that, as “proximate results” of Dr. Salinas’s negligence and gross negligence, “Nemesio Dimas sustained physical pain, past and probable future physical impairment, past and probable future disfigurement, past and probable future mental anguish, and probable future loss of earning capacity....”

Dr. Salinas was served with citation and the Dimases’ original petition on February 16, 2009. Also delivered to Dr. Salinas on that date was an expert medical report authored by William A. Frumovitz, M.D., accompanied by Dr. Frumovitz’s curriculum vitae. See id. Dr. Salinas filed his original answer, generally denying all allegations, on March 5, 2009.

On September 10, 2009, Dr. Salinas moved to dismiss the suit brought by the Dimases, arguing that the Dimases had not complied with the expert report requirement prescribed in section 74.351 of the civil practice and remedies code. See id. § 74.351(a) (“In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.”). In his motion, Dr. Salinas asserted that (1) 120 days had passed since the filing of the Dimases’ original petition, and (2) Dr. Frumovitz’s expert report “was not served in accordance with rule 21a of the Texas Rules of Civil Procedure, and was therefore ineffective.” See id.; Tex.R. Civ. P. 21a.

After a hearing on September 29, 2009, the trial court denied Dr. Salinas’s motion to dismiss. This interlocutory appeal followed. See Tex. Civ. Prao. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008) (permitting appeal of interlocutory order denying all or part of a motion to dismiss for failure to serve an expert report in a health care liability claim).

II. Standard of Review

We review a trial court’s order denying a motion to dismiss for failure to comply with the expert report requirement under an abuse of discretion standard. NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 32 (Tex.App.-El Paso 2006, no pet.) (applying abuse of discretion standard to trial court’s denial of motion to dismiss); Kendrick v. Garcia, 171 S.W.3d 698, 702 (Tex.App.-Eastland 2005, pet. denied) (same); see Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) (applying abuse of discretion standard to trial court’s granting of motion to dismiss). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas 2007, pet. denied). Therefore, when the issues are purely questions of law, as here, we effectively conduct a de novo review. See Pallares v. Magic Valley Elec. Coop., Inc., 267 S.W.3d 67, 69-70 (Tex.App.-Corpus Christi 2008, pet. refd); see also Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989) (holding that “matters of statutory construction are questions of law for the court to decide rather than issues of fact”).

III. Analysis

By his sole issue, Dr. Salinas contends that the trial court erred in denying his motion to dismiss because the Dimases failed to validly serve an expert medical report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Dr. Salinas argues specifically that “service [of an expert report] upon a defendant healthcare provider requires rule 21a service and such service cannot be accomplished until a defendant has answered.” See Tex.R. Civ. P. 21a. According to Dr. Salinas, because the Di~ mases’ expert report was delivered to him prior to his having answered the lawsuit, the report was not properly “served” upon him. We disagree.

We note at the outset of our analysis that neither party disputes the applicability of rule 21a of the Texas Rules of Civil Procedure to the service of an expert report under section 74.351. See Fulp v. Miller, 286 S.W.3d 501, 510 (Tex.App.-Corpus Christi 2009, no pet.) (op. on reh’g) (concluding that “the Legislature intended for claimants to comply with rule 21a ... to fulfill the requirements of section 74.351(a)”); Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 872 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (same); Kendrick, 171 S.W.3d at 704 (same). Rule 21a specifically permits service of a document “by delivering a copy to the party to be served, or the party’s duly authorized agent or attorney of record, as the case may be, either in person or by agent.... ” Tex.R. Civ. P. 21a. Moreover, the parties both acknowledge that Dr. Salinas was, in fact, personally served with Dr. Frumovitz’s expert report at the time he was served with citation and the Dimases’ original petition. The sole question for this Court, therefore, is whether service of an expert medical report on a defendant may be effectuated prior to the defendant answering the lawsuit.

In arguing that it may not, Dr. Salmas notes that, if a claimant is permitted to serve an expert report upon a defendant before that defendant answers the lawsuit, it is possible that the deadline for challenging the expert report would expire before the deadline for filing an answer. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (“Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.”); Tex.R. Civ. P. 99(b) (“The citation shall direct the defendant to file a written answer to the plaintiffs petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof.”). Dr. Salinas urges that “it is unfathomable that the Legislature would allow a situation to exist where the time period to object would expire prior to the defendant’s deadline to file an answer and enter an appearance.”

In support of his argument, Dr. Salinas cites Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex.2008) and Morris v. Umberson, 312 S.W.3d 763 (Tex.App.-Houston [1st Dist.] 2009, pet. filed). In both cases, the defendant health care provider filed an untimely answer to the plaintiffs lawsuit. Gardner, 274 S.W.3d at 670; Morris, 312 S.W.3d at 767. The plaintiff then served an expert medical report on the defendant after the defendant filed its untimely answer. Gardner, 274 S.W.3d at 670; Morris, 312 S.W.3d at 767. The defendant argued that the expert report was untimely because it was served more than 120 days after the plaintiffs original petition was filed. Gardner, 274 S.W.3d at 670; Morris, 312 S.W.3d at 767. Both courts found that the 120-day deadline was tolled from the time the defendant’s answer was due to the time the defendant eventually made an appearance; therefore, the expert reports were timely filed. Gardner, 274 S.W.3d at 671; Morris, 312 S.W.3d at 767. Dr. Salinas concedes that these cases are not directly on point with the issue we consider here, but notes that “in both cases, courts of appeals considered the date of the defendant’s answer in tolling the 120-day expert report deadline.”

We do not find Gardner or Morris to be persuasive. Neither of those cases involved a plaintiff serving an expert medical report prior to the date that the defendant’s answer was due. To the extent that these cases considered the date of the defendant’s answer, they did so only in the context of determining how long the 120-day expert report deadline would be tolled. In fact, both courts found that the 120-day period began with the filing of the claimant’s original petition and that the tolling of that period commenced only upon the expiration of the defendant’s time to file an answer under rule 99(b). Gardner, 274 S.W.3d at 671; Morris, 312 S.W.3d at 767.

Requiring a defendant to file any objections to an expert report prior to the deadline for filing an answer to the lawsuit may seem counterintuitive, but we disagree with Dr. Salinas that the Legislature could not have intended this result. When interpreting a statute, we presume that the Legislature enacted it with complete knowledge of the existing law and with reference to that law. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex.2009) (citing Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex.1990)). Nothing in the rules of civil procedure states or implies, as Dr. Salinas suggests, that rule 21a service “cannot be accomplished until a defendant has answered.” Moreover, there is nothing in chapter 74 that could be interpreted as creating any exception to the rule that a defendant must file any objection to an expert report within twenty-one days of the service of the report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). In enacting chapter 74, the Legislature chose not to include a provision, such as those found in many rules of civil procedure, enlarging the time for a defendant to file objections to an expert report when that defendant is served with the report prior to answering the lawsuit. Under these circumstances, where the laws at issue do not actually conflict, we must adhere to the plain meaning of both rule 21a and section 74.351. See Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 865 (Tex.1999) (“[I]t is cardinal law in Texas that a court construes a statute “first, by looking to the plain and common meaning of the statute’s words.”) (quoting Liberty Mut. Ins. Co. v. Garrison Contractors, 966 S.W.2d 482, 484 (Tex.1998)). Accepting Dr. Salinas’s argument here would require us to create an exception to the statute, which we are not at liberty to do. See Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex.1995) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968)) (“The wisdom or expediency of the law is the Legislature’s prerogative, not ours.”).

We therefore conclude that there is nothing in the applicable rules or statutes prohibiting a health care liability claimant from serving an expert medical report on a defendant prior to that defendant having answered the lawsuit. Accordingly, the Dimases’ expert report was timely served, and the trial court did not err by denying Dr. Salinas’s motion to dismiss. Dr. Salinas’s sole issue is overruled.

IV. Motion FOR Dismissal and Sanctions

In his notice of appeal and appellate brief, Dr. Salinas named the Dimases’ counsel, Harold K. Tummel, as an appel-lee. On December 1, 2009, Tummel filed a “Motion for Dismissal and Award of Just Damages” with this Court, asking us to dismiss the appeal as it relates to him and to award him reasonable attorney’s fees as a sanction against Dr. Salinas’s attorneys, Ronald G. Hole and I. Cecilia Garza. See Tex.R.App. P. 25.1(b), 45 (providing that we may “award each prevailing party just damages” if we determine that an appeal is frivolous).

Hole and Garza filed a response to Tum-mel’s motion in which they argue that Tummel is “a necessary and proper party to this appeal as [Dr. Salinas] sought attorney’s fees from both the claimant and his attorney, as authorized by statute.” The statute provides that, if a health care liability claimant does not timely serve an expert medical report, the trial court must “enter an order that ... awards to the affected physician or health care provider reasonable attorney’s fees and costs of court. ...” Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(b). The current version of the statute does not specify whether the claimant, the claimant’s attorney, or both are potentially liable for attorney’s fees; however, the previous version of the statute stated that the order for attorney’s fees must be entered “against the claimant or the claimant’s attorney.” See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 13.01(e), 1995 Tex. Gen. Laws 985, 986 (former Tex.Rev.Civ. Stat. art. 45901, § 13.01(e)), repealed, by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Both parties cite the Legislature’s action in 2003 as support for their positions: Hole and Garza argue that, if the Legislature intended to entirely prohibit the recovery of fees from the claimant’s attorney, it would have left language in the statute stating that the order should be entered “against the claimant”; Tummel argues that, without the prior language, there is no authority supporting the imposition of sanctions against a claimant’s attorney.

In at least three other appeals before this Court, Hole and Garza have named an opposing party’s counsel as an appellee. See Guerrero v. Ruiz, No. 13-09-00150-CV, 2009 WL 3766689, at *4, 2009 Tex.App. LEXIS 8685, at *10-11 n. 2 (Tex.App.-Corpus Christi Nov. 12, 2009, no pet.) (mem. op.); Haddad v. Marroquin, No. 13-08-00139-CV, 2009 WL 2192737, at *4, 2009 Tex.App. LEXIS 5674, at *10-12 n. 1 (Tex.App.-Corpus Christi July 23, 2009, pet. denied) (mem. op.); Fulp, 286 S.W.3d at 512-13. In each case, we found that attorney’s fees were unavailable because the trial court had not yet dismissed the claimant’s suit; therefore, we declined to address the issue of whether section 74.351(b) permits the recovery of attorney’s fees from a claimant’s attorney. Guerrero, 2009 WL 3766689, at *4, 2009 Tex.App. LEXIS 8685, at *10 n. 2; Haddad, 2009 WL 2192737, at *4, 2009 Tex.App. LEXIS 5674, at *11-12 n. 1; Fulp, 286 S.W.3d at 513. The same result must obtain here. Because the trial court did not err in denying Dr. Salinas’s motion to dismiss, Dr. Salinas is not entitled to attorney’s fees under section 74.351(b). See Tex. Civ. Prao. & Rem.Code Ann. § 74.351(b). We need not address whether attorney’s fees would have been recoverable from Tummel had the Dimases not timely served an expert report. See Tex. R.App. P. 47.1. Moreover, because we have consistently declined to address this issue, we cannot say that Hole and Garza’s naming of Tummel as a party to the appeal amounts to sanctionable conduct. See Gard v. Bandera County Appraisal Dist., 298 S.W.3d 613, 619-20 (Tex.App.-San Antonio 2009, no pet.) (denying appellees’ motion for sanctions and finding that the appeal was not “objectively frivolous” because it raised an issue of first impression); Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., 164 S.W.3d 438, 448 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (“We impose sanctions only under those circumstances we find truly egregious.”).

We note, however, that the appellate rules provide that “[t]he filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed from.” Tex.R.App. P. 25.1(b). Because Tummel was not a party to the trial court’s order denying Dr. Salinas’s motion to dismiss, we do not have jurisdiction over Dr. Salinas’s appeal as to Tum-mel. See Haddad, 2009 WL 2192737, at *4, 2009 TexApp. LEXIS 5674, at ⅜12 n. 1 (concluding that the Court had no jurisdiction over appellee’s attorney); Fulp, 286 S.W.3d at 513 (same). We therefore grant Tummel’s motion to dismiss the appeal as it relates to him.

V. Conclusion

Having overruled Dr. Salinas’s issue, we affirm the judgment of the trial court. We further grant in part and deny in part Tummel’s “Motion for Dismissal and Award of Just Damages.” Specifically, we (1) dismiss the appeal as it relates to Tum-mel for want of jurisdiction, and (2) deny Tummel’s request for sanctions.

      . Dr. Salinas does not dispute that Dr. Fru-movitz's report is sufficient to qualify as an "expert report” under chapter 74. See Tex. Civ. Pkac. & Rem.Code Ann. § 74.35l(r)(6) (Vernon Supp.2009) (defining "expert report” as "a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed”). Rather, he claims only that the report was not "served” upon him pursuant to the applicable rules.

      . We recently held that service of an expert medical report upon an entity will be ineffective if it is done before that entity becomes a "party” to the lawsuit. Carreras v. Zamora, 294 S.W.3d 348, 350 (Tex.App.-Corpus Christi 2009, no pet.). In Carreras, the plaintiff served the defendant, Dr. Carreras, with an expert report prior to adding the doctor as a party to the lawsuit. Id. at 349. We concluded that, because Dr. Carreras was not a "party” at the time he was served with the report, the service was invalid. Id. at 349-50 (noting that section 74.351 requires service of an expert report "on each party or the party’s attorney " (emphasis added)).
      Dr. Salinas argues that he was similarly not a "party” to the Dimases1 lawsuit at the time he was provided with the expert report because he had not, as of that time, made an appearance in the lawsuit. However, as we noted in Carreras, "[t]o be a 'party' to a lawsuit, one must generally be served, accept or waive service, or make an appearance.” Id. at 350 (emphasis added) (quoting Yilmaz v. McGregor, 265 S.W.3d 631, 637 (Tex.App.Houston [1st Dist.] 2008, pet. denied)). Here, it is undisputed that Dr. Salinas was served with the expert report at the same time that he was served with citation. Therefore, unlike Dr. Carreras, Dr. Salinas was a "party” to the lawsuit at the time the expert report was served; the fact that Dr. Salinas had not "made an appearance” as of that time is immaterial. See Yilmaz, 265 S.W.3d at 637.

      . See Tex.R. Civ. P. 194.3(a) (allowing a defendant twenty additional days to answer a request for disclosure when the defendant is served with the request prior to answering the lawsuit); Tex.R. Civ. P. 196.2(a) (same for responses to requests for production and inspection); TexR. Civ. P. 197.2 (same for responses to interrogatories); Tex.R. Civ. P. 198.2(a) (same for requests for admissions).


author: Opinion by Justice BENAVIDES.

text:
    Wilma REEDY, R.N., Appellant, v. Elizabeth POMPA and Nicholas Pompa, III, as Parents and Next Friends of Annica Pompa, a Minor, Appellees.
    No. 13-08-00590-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    March 18, 2010.

      Brian G. Jackson, Douglas W. Bryant, Nadia L. Jafar, Davis & Davis, Austin, for Appellant.
    Robert J. Talaska, The Talaska Law Firm, PLLC, Timothy L. Culberson, Houston, for Appellees.

      Before Justices YÁÑEZ, RODRIGUEZ, and BENAVIDES.
   OPINION

Opinion by Justice BENAVIDES.

In this interlocutory appeal, appellant, Wilma Reedy, R.N., appeals from the trial court’s denial of her motion to dismiss under Texas Civil Practice and Remedies Code section 101.106(f) in favor of appel-lees, Elizabeth Pompa and Nicholas Pom-pa, III, as parents and next friends of Annica Pompa, a minor (collectively “the Pompas”). See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f) (Vernon 2005); id. § 51.014(a)(5) (Vernon 2008) (authorizing an interlocutory appeal from an order that denies “a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state”). Under section 101.106(f), a trial court must dismiss a suit against an employee of a governmental unit if the employee shows that the suit was based on conduct within the general scope of his or her employment and that the suit “could have been brought under [the Tort Claims Act] against the governmental unit.” Id. § 101.106(f). On appeal, Reedy argues by two issues that (1) she proved the suit was based on conduct within the scope of her employment with a hospital, for which the hospital could have been liable, and she was not required to prove that sovereign immunity would be waived in a suit against her employer; and (2) if she was required to prove a waiver of sovereign immunity, she did so. For the reasons that follow, we disagree and affirm the trial court’s order denying Reedy’s motion to dismiss.

I. BACKGROUND

The Pompas brought healthcare liability claims against Timothy Spradlin, M.D. and Reedy on May 30, 2008, and concurrently filed the expert report and a curriculum vitae of John Spurlock, M.D. The original petition alleged that on February 1, 2004, Elizabeth Pompa was a maternity patient at Cuero Community Hospital, where she gave birth to her daughter Annica Pompa. Annica was delivered by Spradlin and Reedy.

The petition alleges that Spradlin and Reedy “failed to exercise ordinary care as required by law in the medical care and treatment of’ Elizabeth before, during, and after Annica’s birth. Specifically, the Pompas alleged that during delivery, Anni-ca suffered from shoulder dystocia and that Reedy “negligently utilized fundal pressure during the shoulder dystocia,” causing a permanent left “brachial plexus injury” requiring extensive medical and rehabilitative expenses in the past and in the future.

Spurlock’s expert report provides the factual detail for the claims. It states that Elizabeth was admitted to the hospital at thirty-eight weeks’ gestation and that Pito-cin, a drug, was administered. After approximately eight hours of labor, Elizabeth began pushing to deliver Annica. Sprad-lin’s delivery notes show that when Anni-ca’s head became visible, a “turtle sign” was noted, which is where the baby’s head retracts back into the birth canal, indicating a shoulder dystocia. Spurlock explains that a shoulder dystocia occurs when “the baby’s shoulder gets stuck behind the mother’s pubic bone after the head has been delivered.” Spradlin attempted a few maneuvers to dislodge the shoulder, including the “McRoberts maneuver” and “suprapubic pressure.”

According to Spurlock, Reedy’s notes indicate that she applied “fundal pressure,” along with assisting Spradlin’s attempt of the McRoberts maneuver, while Annica’s shoulder was still impacted against Elizabeth’s pubic bone. Fundal pressure is, Spurlock explains, “the application of force with the hands on the fun-dus [upper abdomen] of the mother to push the fetus down the birth canal in an effort to accomplish delivery.”

After birth, Spradlin and Reedy noticed that Annica was not moving her left arm and that there was minimal movement of her left fingers. Spradlin immediately diagnosed Annica as having left “Erb’s Palsy,” which is “paralysis of the left arm, wrist, and hand due to injury to the bra-chial plexus nerves.”

Spurlock opined that Reedy violated the standard of care for a nurse by applying fundal pressure while the baby suffered shoulder dystocia:

Once a shoulder dystocia occurs, the nurses should not apply fundal pressure. The inappropriate use of fundal pressure by the nurse during a shoulder dystocia and the force involved in such a maneuver causes the shoulder to be further impacted against the mother’s pubic bone. This greater impaction actually stretches the brachial plexus nerves as the shoulder has nowhere to go. This fundal pressure risks stretching, tearing or avulsing the nerves which come from the spinal cord and causing impaired function of the arm, shoulder and hand as occurred in this case. The medical literature also associates more brachial plexus nerve injuries with the use of fundal pressure during shoulder dysto-cia. Given that Baby Pompa experienced a severe shoulder dystocia during delivery with several maneuvers used to deliver the baby along with simultaneous inappropriate use of fundal pressure, more likely than not, in reasonable medical probability, the use of fundal pressure during the shoulder dystocia caused the baby’s brachial plexus injuries as noted above.

On July 3, 2008, Reedy filed a plea to the jurisdiction arguing that the trial court lacked jurisdiction because Reedy was entitled to sovereign immunity under the Texas Tort Claims Act. See id. §§ 101.001-101.109 (Vernon 2005 & Supp. 2009). Specifically, she argued that the Pompas’ petition failed to allege the use or condition of tangible personal property as required by section 101.021. See id. § 101.021 (Vernon 2005). Reedy also filed an answer containing a general denial and an affirmative defense, in which she asserted that she was an employee of Cuero Community Hospital, a governmental unit that retained its sovereign immunity from suit.

On August 29, 2008, Reedy filed a motion to dismiss, arguing that because she was an employee of a governmental unit, the suit against her should be dismissed under Texas Civil Practice and Remedies code section 101.106(f). Id. § 101.106(f). That provision states:

If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment, and it could have been brought under this Chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the motion is filed.

Id.

In this motion, Reedy argued that she was entitled to a dismissal of the claims against her because she was an employee of a governmental unit, acting in the general scope of her employment, and the suit could have been brought against her employer. Reedy argued that she did not have to prove that a waiver of sovereign immunity existed to obtain dismissal; rather, she argued that she only had to prove that the governmental unit could theoretically be liable for her conduct as her employer under agency theories.

In the alternative, however, Reedy argued that the Pompas “could have argued” that sovereign immunity was waived and sued her employer under the Tort Claims Act. Reedy argued that nurses and physicians necessarily rely on medical equipment during the course of a delivery. Reedy argued that she did not apply fun-dal pressure as alleged by the Pompas, and even if she did, she did not use merely her hands during the shoulder dystocia. Rather, she relied upon and used various medical equipment.

The motion to dismiss attached an affidavit from Reedy. In it, she stated that she was a salaried employee at the hospital, and that she cared for Elizabeth while she was a patient at the hospital. She then stated that “[a]ny birthing maneuvers applied during the course of Annica Pom-pa’s birth were done with the assistance of reading and interpreting the fetal monitoring sti'ip and other medical equipment, as well as positioning the hospital bed to allow for proper application of the maneuvers.”

The Pompas filed a response to the motion to dismiss, arguing that Reedy was, in fact, required to prove that sovereign immunity was waived as to her employer before she could obtain a dismissal under section 101.106(f). The trial court held a hearing on October 1, 2008, and it denied the motion the same day. This interlocutory appeal followed.

II. INTERPRETATION OF SECTION 101.106(f)

Reedy argues in her first issue that the trial court erroneously interpreted section 101.106(f) to require her to prove that sovereign immunity under the Tort Claims Act would be waived if the Pompas filed suit against her employer, a governmental unit. See id. We disagree.

We review questions of statutory interpretation de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989). When construing a statute, we must determine and give effect to the legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we ascertain the legislature’s intent from the language used in the statute. Id. If the statutory language is unambiguous, we adopt the interpretation supported by the statute’s plain meaning. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997).

The parties dispute the meaning of the phrase “if [the suit] could have been brought under this Chapter against the governmental unit_” Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f). Most courts interpreting section 101.106(f)’s language have held that, in order to prove that suit “could have been brought under this Chapter” against a governmental entity, the employee-defendant must prove that the plaintiffs claims satisfied section 101.021’s requirements to obtain a limited waiver of sovereign immunity from suit and from liability. Id. § 101.021; see Lanphier v. Avis, 244 S.W.3d 596, 600 (Tex.App.-Texarkana 2008, pet. dism’d); Hall v. Provost, 232 S.W.3d 926, 928 (Tex.App.-Dallas 2007, no pet.); Kanlic v. Meyer, 230 S.W.3d 889, 893-94 (Tex.App.-El Paso 2007, pet. denied); Clark v. Sell ex rel. Sell, 228 S.W.3d 873, 874-75 (Tex.App.-Amarillo 2007, pet. filed); Franka v. Velasquez, 216 S.W.3d 409, 413 (Tex.App.-San Antonio 2006, pet. granted); Tejada v. Rowe, 207 S.W.3d 920, 925 (Tex.App.-Beaumont 2006, pet. filed); Phillips v. Dafonte, 187 S.W.3d 669, 675 (Tex.App.-Houston [14th Dist.] 2006, no pet.). In this case, that would require Reedy to show that Annica’s personal injury was “caused by a condition or use of tangible or real property.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2).

Reedy conceded below that the case law is contrary to her position. However, she argued that the Texas Supreme Court’s recent decision in Mission Independent School District v. Garcia mandates a different result. See 253 S.W.3d 653, 655-57 (Tex.2008). In that case, the Texas Supreme Court interpreted section 101.106(e), which provides:

(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

Tex. Civ. Prac. & Rem Code Ann. § 101.106(e) (emphasis added). Garcia sued both Mission Independent School District and its employee, alleging claims against the school district under the Texas Commission on Human Rights Act and for intentional infliction of emotional distress. Garcia, 253 S.W.3d at 655. The school district moved to dismiss under section 101.106; the trial court denied the motion, and we affirmed. Id. On appeal to the Texas Supreme Court, Garcia argued that the trial court properly denied the motion to dismiss because her claims were not filed “under this chapter,” i.e., under the Texas Tort Claims Act, reasoning that the discrimination claims were governed by a separate statute and the tort claim was excluded from the Tort Claims Act because it was an intentional tort. Id. at 658. The supreme court held that Garcia’s tort claims were not excluded from section 101.106(e)’s application:

The court of appeals reasoned that none of Garcia’s claims were brought “under this chapter” because they did not fit within the Tort Claims Act’s waiver, and therefore section 101.106(e) did not apply. However, we have never interpreted “under this chapter” to only encompass tort claims for which the Tort Claims Act waives immunity. To the contrary, in Newman v. Obersteller, 960 S.W.2d 621, 622-23 (Tex.1997), we held that former section 101.106’s limiting phrase “under this chapter” operated to bar an intentional tort claim against an employee after a final judgment on a claim involving the same subject matter had been rendered against the governmental unit, even though the Act by its terms expressly excluded intentional torts from the scope of the Act’s immunity waiver. Although these cases construed the prior version of section 101.106, there is nothing in the amended version that would indicate a narrower application of the phrase “under this chapter” was intended. Because the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be “under [the Tort Claims Act]” for purposes of section 101.106.

Id. at 658-59 (citations omitted). The First Court of Appeals, which originally construed section 101.106(f) to require the employee to prove a waiver of immunity, has now applied the supreme court’s language in Garcia to eliminate that requirement. Compare Williams v. Nealon, 199 S.W.3d 462, 466 (Tex.App.-Houston [1st Dist.] 2006, pet. filed) (requiring proof of a waiver), ivith Kelemen v. Elliott, 260 S.W.3d 518, 524 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (holding that section 101.106© applied to intentional torts, even though these are excluded from the Tort Claims Act’s coverage); cf. Castro v. McNabb, — S.W.3d -, - (Tex.App.-El Paso 2009, no pet.) (holding that Garcia applies to section 101.106© but holding that a declaratory judgment action is not brought under the Texas Tort Claims Act).

What Reedy and the First Court of Appeals do not address in their analysis, however, is that the Garcia court also expressly noted that it was not construing section 101.106(f), which contains different language:

Section 101.106© contains a slightly different phrase. It states that the suit against the employee is to be dismissed when the suit “could have been brought under this chapter against the governmental unit.” The interpretation of section 101.106© is not before us here and neither party argues that it applies to this case.

Garda, 258 S.W.3d at 660 n. 5. Specifically, the phrase “could have been brought” modifies the phrase “under this chapter.” Id. We conclude the phrase “could have been brought” unambiguously invokes the Tort Claims Act’s limited waiver of immunity from suit and liability, and the Texas Supreme Court did not intend to undo the scores of opinions holding otherwise. See id.; see also Lieberman v. Romero, No. 05-08-01636-CV, 2009 WL 3595128, at *2 (Tex.App.-Dallas Nov. 3, 2009, no pet. h.) (memo, op.) (rejecting argument that Gar-da eliminated the requirement to show that the plaintiffs claims fall within a waiver of immunity). Accordingly, we hold that Reedy was required to show that the Pompas’ suit invoked a waiver of immunity from suit and liability under the Tort Claims Act in order to prevail on her motion to dismiss under section 101.106(f), and we overrule her first issue.

III. Reedy’s PROOF under Section 101.106(f)

In the alternative, by her second issue, Reedy argues that she demonstrated that she was employed by a governmental unit and acted within the general scope of her duties and that suit could have been brought against her employer because the Pompas’ suit involves the use of tangible personal property. See Tex. Crv. Prac. & Rem.Code Ann. § 101.021(2). It is undisputed that Reedy was employed by Cuero Community Hospital, which is a governmental unit, and that she was acting within the scope of her employment at the time she provided care to Elizabeth and Annica. Thus, the only issue is whether she established a waiver of immunity through the use of tangible personal property. We hold she did not.

“As the movant on the motion to dismiss, it is [Reedy’s] burden to point to the facts evidencing that [the Pompas’] suit could have been brought against [the hospital].” Sheth v. Dearen, 225 S.W.3d 828, 830 (Tex.App.-Houston [14 Dist.], 2007, no pet.) (citing Phillips, 187 S.W.3d at 677; Tejada, 207 S.W.3d at 923). A movant will typically rely on the plaintiffs pleadings to show a waiver of immunity, but “other evidence is proper if relevant to the issue of waiver of sovereign immunity.” Id. (citing Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001) (“We must examine the plaintiffs pleadings and, to the extent relevant to the jurisdictional issue, the evidence submitted by the parties in order to determine if the government waived sovereign immunity.”)); see also Franka, 216 S.W.3d at 412; Tejada, 207 S.W.3d at 922-23; Phillips, 187 S.W.3d at 676-77. When looking at the plaintiffs pleadings to determine if the facts alleged support a waiver of sovereign immunity, “we look at the substance of the plaintiffs pleadings rather than his characterizations of them.” Sheth, 225 S.W.3d at 830 (citing Phillips, 187 S.W.3d at 676-77). ‘Where the facts taken from the plaintiffs pleadings are undisputed, the question of whether those pleadings support a jurisdictional finding of waiver of sovereign immunity is one of law and is thus reviewed de novo.” Id. at 831 (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004)).

Reedy argues that the Pompas’ pleadings, Spurlock’s expert report, and her own evidence demonstrate the use of tangible personal property in two respects: (1) Spurlock’s report notes that the drug Pitocin was administered to Elizabeth during delivery; and (2) Reedy alleged in her motion and testified in her affidavit that she relied on medical devices, fetal monitor strips, and other medical equipment during the shoulder dystocia. Reedy, however, does not point to any allegation in the Pompas’ petition or any evidence that the administration of Pitocin or the use or misuse of medical devices, fetal monitor strips, and other medical equipment caused the injuries that Annica suffered.

To demonstrate a waiver of immunity, a plaintiff may not merely plead that tangible personal property was involved in the events giving rise to the claim — rather, the plaintiff must plead a causal nexus between the tangible personal property and the injury. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 389, 343 (Tex.1998). For example, in Franlca v. Velasquez, the San Antonio Court of Appeals addressed a shoulder dystocia case very similar to this case. See 216 S.W.3d at 410-11. In that case, the plaintiffs expert report noted that the doctors used a vacuum extractor during delivery; thus, the doctors moved to dismiss under section 101.106(f) arguing that suit could have been brought against their governmental entity employer because a vacuum extractor constituted tangible personal property. Id. at 411. The court of appeals disagreed, holding that there was no evidence that the vacuum extractor caused the shoulder injuries. Id. at 412-13.

The same is true here. There is nothing in the record to indicate that the use of any tangible personal property caused An-nica’s brachial plexus injury. Although Reedy alleges that she performed birthing maneuvers “with the assistance of reading and interpreting the fetal monitor strip and other medical equipment, as well as positioning the hospital bed to allow for proper application of the maneuver(s),” she does not point to anything in the Pompas’ pleadings or point to any evidence that the equipment contributed to Annica’s injury in any way. Moreover, Spurlock’s expert report does not indicate that the use of Pitocin or any other piece of tangible personal property caused Annica’s injury-— rather, he unequivocally states that Reedy’s application of fundal pressure caused Annica’s injury. Thus, there is no allegation or evidence that would support a finding that suit could have been brought against Reedy’s employer, and we overrule her second issue. See id.

IV. Conclusion

Having overruled both of Reedy’s issues, we affirm the trial court’s order denying Reedy’s motion to dismiss.

      . Although section 51.014(a)(5) provides for an appeal of an order denying a motion for summary judgment, most courts of appeals have allowed an interlocutory appeal from rulings on other types of motions raising immunity issues, such as motions to dismiss. See Leonard v. Glenn, 293 S.W.3d 669, 681 n. 11 (Tex.App.-San Antonio 2009, pet. filed); Escalante v. Rowan, 251 S.W.3d 720, 727 (Tex.App.-Houston [14th Dist.] 2008, pet. filed); Lanphier v. Avis, 244 S.W.3d 596, 598-99 (Tex.App.-Texarkana 2008, pet. dism'd); Kanlic v. Meyer, 230 S.W.3d 889, 892 (Tex.App.-El Paso 2007, pet. denied); see also Poland v. Willerson, No. 01-07-00198-CV, 2008 WL 660334, at *7 (Tex.App.-Houston [1st Dist.] Mar. 13, 2008, pet. denied) (mem. op.); Karnes County v. Thomas, No. 04-06-00613-CV, 2007 WL 2261694, at *3 (Tex.App.-San Antonio Aug. 8, 2007, no pel.) (mem. op.). The Dallas Court of Appeals, however, has held that only rulings on motions for summary judgment may be appealed under section 51.014(a)(5). See Hudak v. Campbell, 232 S.W.3d 930, 931 (Tex.App.Dallas 2007, no pet.). We agree with the majority of courts that hold that section 51.014(a)(5) allows an interlocutory appeal from an order denying a motion to dismiss based on immunity. See Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004) (interpreting section 510.04(a)(8) and concluding that "[t]he reference to 'plea to the jurisdiction’ is not to a particular procedural vehicle but to the substance of the issue raised. Thus, an interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to the jurisdiction or some other vehicle, such as a motion for summary judgment.”).

      . Spurlock's report explains that the ''McRo-berts maneuver” is the "flexing of the patient’s hips” that “allows a sharp ventral rotation of both maternal hips and brings the pelvic inlet and outlet into a more vertical alignment allowing rotation of the [baby's] shoulders and facilitating the delivery of the shoulders.”

      . Spurlock also explained that "suprapubic pressure, alone or with the McRoberts maneuver, places pressure on the area of the pubic bone and pushes the impacted shoulder under the pubic bone thereby delivering the impacted shoulder.”

      . Section 101.021 provides:
      A governmental unit in the state is liable for:
      (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
      (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
      (B) the employee would be personally liable to the claimant according to Texas law; and
      (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
      Tex. Civ. Prac. & Rem.Code Ann. § 101.021(b).