Appeal from the 125th District Court Harris County, Texas
Trial Court Case No. 2015-52136
consists of Justices Higley, Massengale, and Lloyd.
RUSSELL LLOYD, JUSTICE
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.
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.
September 3, 2015, Stewart sued Walgreen for
assault 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.
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.
January 25, 2017, the trial court denied Walgreen's
motion to dismiss. This interlocutory appeal followed.
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.).
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
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 ...