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Walgreen Company v. Stewart

Court of Appeals of Texas, First District

November 30, 2017

WALGREEN COMPANY, Appellant
v.
CHARLES STEWART, Appellee

         On Appeal from the 125th District Court Harris County, Texas Trial Court Case No. 2015-52136

          Panel consists of Justices Higley, Massengale, and Lloyd.

          MEMORANDUM OPINION

          RUSSELL LLOYD, JUSTICE

         In this interlocutory appeal, Walgreen Company appeals the trial court's order denying its motion to dismiss Charles Stewart's suit alleging claims for assault and negligence. In its sole issue, Walgreen contends that the trial court erred in denying its motion to dismiss because Stewart's claims are health care liability claims, and Stewart failed to provide an expert report and curriculum vitae as required by Chapter 74 of the Civil Practice and Remedies Code. We affirm.

         Background

         On October 18, 2013, Stewart went to the Walgreen store located at 105 West Road in Houston, Texas, to purchase prescription medication. According to Stewart's pleadings, he was engaged in an "animated discussion" with the pharmacist when a Walgreen employee physically attacked him, resulting in serious injury.

         On September 3, 2015, Stewart sued Walgreen for assault[1] and negligent hiring, supervision, training, and retention. His petition alleges that the Walgreen employee "acted intentionally, knowingly, or recklessly when physically attacking and making contact with [Stewart] and that the "employee's contact caused substantial bodily injury to [Stewart]." He further alleges that Walgreen was negligent in its own right for failing to properly "hire, supervise, train or retain competent employees, " which resulted in Stewart's assault and subsequent injuries.

         On July 11, 2016, Walgreen filed a motion to dismiss Stewart's suit for failure to serve an expert report and curriculum vitae in accordance with the Texas Medical Liability Act ("TMLA"). On July 25, 2016, Stewart filed a response to Walgreen's motion to dismiss, arguing that his claims do not constitute health care liability claims and, therefore, he was not required to serve an expert report and curriculum vitae. On July 26, 2016, Walgreen filed a reply to Stewart's response.

         On January 25, 2017, the trial court denied Walgreen's motion to dismiss. This interlocutory appeal followed.

         Standard of Review

         Generally, we review a district court's ruling on a motion to dismiss under Chapter 74 of the Texas Civil Practices and Remedies Code for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). However, when the issue, as in this case, involves the applicability of Chapter 74 to the plaintiff's claims and requires an interpretation of the TMLA, i.e., a question of law, we apply a de novo standard of review. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012); Methodist Hosp. v. Halat, 415 S.W.3d 517, 520 (Tex. App.-Houston [1st Dist.] 2013, no pet.).

         When interpreting a statute, our primary goal is to ascertain and give effect to the intent of the legislature. See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Where the statutory text is clear, we presume that the words chosen are the surest guide to legislative intent. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010). We rely upon the definitions prescribed by the legislature and any technical or particular meaning the words have acquired. See Tex. Gov't Code Ann. § 311.011(b) (West 2013). Otherwise, we apply the words' plain and common meanings, unless the legislature's contrary intention is apparent from the context or such a construction would lead to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008).

         Discussion

         The issue before us is whether the trial court properly determined that Stewart's claims are not health care liability claims. Only health care liability claims are subject to the expert report requirement in section 74.351 of the Civil Practice and Remedies Code. S ...


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