Court of Appeals of Texas, Eighth District, El Paso
from 384th District Court of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Palafox, JJ.
CRAWFORD MCCLURE, CHIEF JUSTICE
nursing home filed suit to collect an unpaid bill from a
former resident. The resident counterclaimed, asserting that
the nursing home's substandard care resulted in her
falling several times with resultant injury. The nursing home
responded that the counterclaim was a "healthcare
liability claim" which procedurally required the
resident to file a timely expert report. The trial court
agreed and based on the resident's failure to file an
expert report, dismissed the counterclaim. The trial court
also awarded attorney's fees against the resident's
attorneys as a sanction for filing groundless pleadings. We
affirm those rulings.
December 13, 2013, Mary Lou Ortiz was admitted to St. Teresa
Nursing and Rehabilitation Center (St. Teresa). Prior to
admission, she had signed an admission agreement that
required her to pay any charges that were not reimbursed
through any government assistance program available to her.
Joanne Ortiz, Mary Lou's daughter, guaranteed the payment
of those same charges. During the six-months that she resided
at St. Teresa, Mary Lou incurred $7, 450.00 in unreimbursed
nursing care and supply charges. When she did not pay for
those charges, St. Teresa sued both Mary Lou and Joanne Ortiz
under breach of contract and quantum meruit theories.
Lou, along with Joanne and Jesus Ortiz (identified as next of
kin) answered and filed a counterclaim on April 20, 2015. The
counterclaim alleged that St. Teresa allowed Mary Lou to
"fall multiple times, because she was unattended and
unsupervised" by the staff, resulting in "severe
physical injuries and emotional, mental anguish to herself
and her family." The counterclaim alleged St. Teresa
breached the duty of care that a nursing home or long-term
care facility would have owed under the same or similar
circumstances. Specific acts of negligence included the
failure to maintain a proper staff to resident ratio, failure
to train the staff, and neglecting Mary Lou's care while
it knew of "her medical need[s.]" Almost a year
later, the Ortizes filed an amended counterclaim that added
John and Jane Doe doctors, nurses, technicians, CNAs, and
paramedic employees. The amended petition also fleshed out
the factual allegations and the claims being asserted. The
pleading asserts that Mary Lou, aged 72 on the date of her
admission, had a medical history of Parkinson's,
cognitive decline, and osteoporosis. On admission she also
had stage three pressure sores. St. Teresa was to provide her
appropriate physical and occupational therapy, as well as
wound care, and monitor her for Parkinson's related
behavioral issues. The amended petition details three
separate falls while she was at the facility. The
counterclaim alleges that St. Teresa owed several duties,
including the duty to evaluate Mary Lou's risk for
falling and implement a plan to prevent falls. The
counterclaim further alleges that in contravention of the
treatment plan, St. Teresa staff left Mary Lou unattended for
"extended periods of time while she was under their
care." The counterclaim also asserted a negligence per
se count premised on the violation of several administrative
requirements applicable to nursing homes that accept Medicare
or Medicaid eligible patients.
15, 2016, St. Teresa filed a motion to dismiss the
counterclaim, alleging in part that it was a health care
provider, that the counterclaim raised a health care
liability claim, and that the Ortizes had never filed an
expert report as required by Tex.Civ.Prac.&Rem.Code Ann.
§ 74.351(a)(requirement that an "expert
report" must be served by the plaintiff within 120 days
of when each defendant health care provider files an answer).
The same day, St. Teresa filed a motion for summary judgment.
That motion claimed that St. Teresa fully performed its
obligations under the contract and that Mary Lou Ortiz failed
to pay $7, 450 in charges, which Joanne Ortiz guaranteed. The
motion also challenged the negligence and negligence per se
counterclaim asserting there was no evidence of a legal duty
owed, or breach of any such duty that proximately caused
injury. The gist of that argument is that only an expert
witness could create a fact issue on those elements and no
expert report was ever filed in this case.
Teresa's efforts to set its motion for summary judgment
during the Fall of 2016 were met with several motions for
continuance, all granted by the trial court. One basis for
the continuances was an on-going discovery dispute. The
Ortizes claimed they served discovery on St. Teresa that was
not timely answered. St. Teresa contended it never received
the discovery requests that were served via email. When it
did respond to the discovery, St. Teresa answered only the
questions germane to the breach of contract claim and it
refused to answer those questions directed at the
counterclaim. St. Teresa urged that absent a predicate expert
report, it had no obligation to respond to discovery germane
to a health care liability claim.
discovery issue was formally raised in a motion to compel.
The trial court heard that motion on December 14, 2016 and
concluded that the counterclaim was in fact a "health
care liability claim" as defined by Section
74.001(a)(13). Because the Ortizes had failed to serve a
medical authorization as required by Section 74.052(a), or an
expert report as required by Section 74.351(a), it denied the
motion to compel discovery.
after, St. Teresa filed a second motion to dismiss the
counterclaim and a first amended motion for summary judgment.
The motion to dismiss also included a claim for sanctions
against the Ortizes' attorneys based on several pleadings
they had filed. After hearing those motions, the trial
court disposed of the case in two orders. The first order
granted St. Teresa's motion for summary judgment on its
breach of contract and quantum meruit claims, awarding St
Teresa $7, 450 in actual damages and $7, 500 in
attorney's fees against the Ortizes. The second order
dismissed the counterclaim because it alleged a health care
liability claim and the Ortizes had failed to file an expert
report. This order does not tax any attorney's fees
against the Ortizes. Rather, it taxes $10, 000 in
attorney's fees as sanctions against the Ortizes'
attorneys under Tex.R.Civ.P. 13 and
Tex.Civ.Prac.&Rem.Code Ann. § 10.001. The order
specifically recites that the Ortizes' motion to compel
discovery responses, a June 28, 2016 motion for continuance
of St. Teresa's motion for summary judgment, and a
November 2, 2016 objection to the same motion were
"groundless, brought in bad faith, and/or presented to
the Court negligently or for an improper purpose." The
Ortizes noticed an appeal only from this second order.
Ortizes bring three issues on appeal. In their first issue,
they claim that trial court erred in granting summary
judgment against their counterclaim, citing genuine issues of
material fact and claimed deficiencies in St. Teresa's
motion for summary judgment. Their second issue contends the
trial court erred in concluding the counterclaim was a health
care liability claim. In their third issue, they claim the
trial erred in granting sanctions without an evidentiary
hearing. For its part, St. Teresa claims this appeal is
frivolous and that we should award "just
understand the Ortizes' first issue, they claim that St.
Teresa's motion for summary judgment as to their
counterclaim was deficient. St. Teresa filed an affirmative
Rule 166a(a) motion in support of its own claim for relief,
but also included a "no evidence" section attacking
the counterclaim. That section generally alleged that the
Ortizes had no evidence of duty, or breach of any duty, as
those elements would need to be proven through expert
testimony, for which the Ortizes had none. On appeal, the
Ortizes contend that St. Teresa failed to identify each of
their distinct claims and then allege which element lacked
evidentiary support. See Tex.R.Civ.P.
166a(i)(permitting party to move for a no-evidence summary
judgment "without presenting summary judgment
evidence," but requiring the moving party to "state
the elements as to which there is no evidence."). They
also claim to have raised a genuine issue of material fact on
any challenged element of their counterclaim.
St. Teresa's motion as to the counterclaim was sufficient
or not is a moot point for two reasons. First and foremost,
the trial court did not grant St. Teresa's motion for
summary judgment as to the counterclaim. The order granting
the motion for summary judgment only did so as to St.
Teresa's affirmative claim for relief--the suit on the
debt--and not on the counterclaim. Second, the Ortizes have
not appealed the trial court's order on the summary
judgment. The trial court entered two distinct orders--one
granting the 166a(a) summary judgment and one order granting
St. Teresa's "Motion to Dismiss
Defendants'/Counter Plaintiffs' Counterclaims and
Motion for Sanctions." The Ortizes' notice of
appeal, and later filed amended notice of appeal,
specifically named the second order as the one they are
appealing. Absent some effort to further amend their notice
of appeal, we are precluded from considering an appeal from
an order never identified in the notice of appeal.
See Tex.R.App.P. 25.1(b)("The 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.").
[Emphasis added]. See also Fain v. Georgen, No.
03-17-00313-CV, 2017 WL 4766654, at *3 (Tex.App.--Austin Oct.
19, 2017, no pet.) (mem. op.) (collecting cases for the
proposition that a notice of appeal cannot be amended to
challenge an "entirely different order than the one
named in the notice"). Issue one is overruled.
trial court did, however, dispose of the counterclaim based
on the motion to dismiss, and the Ortizes did name that order
in their notice of appeal. The sole basis for the trial
court's dismissal is that the counterclaim asserts a
health care liability claim under the Texas Medical Liability
Act (TMLA) and the Ortizes failed to comply with the
statutory predicates for such claims, including the filing a
complaint expert report. In their second issue, the Ortizes
challenge the trial court's characterization of all the
counterclaims as health care liability claims. The scope of
the TMLA is fundamentally a question of statutory
construction, which as a legal question that we review de
novo. Texas West Oaks Hosp., LP v. Williams, 371
S.W.3d 171, 177 (Tex. 2012).
general, the TMLA reflects "a careful balance between
eradicating frivolous claims and preserving meritorious
ones." Leland v. Brandal, 257 S.W.3d 204, 208
(Tex. 2008). As a part of that balance, the statute requires
that a plaintiff asserting a "health care liability
claim" must serve a compliant expert report within 120
days of when each defendant health care provider files an
answer. Tex.Civ.Prac.&Rem.Code Ann. § 74.351(a). The
report must distinctly address each health care
defendant's breach of the standard of care and how that
breach caused injury. Clapp v. Perez, 394 S.W.3d
254, 259 (Tex.App.--El Paso 2012, no pet.). The expert report
requirement was intended as a "substantive hurdle for
frivolous medical liability suits before litigation gets
underway." Spectrum Healthcare Resources, Inc. v.
McDaniel, 306 S.W.3d 249, 253 (Tex. 2010). Failure to
file the report leaves the trial court no discretion--it must
dismiss the claim with prejudice and award fees and costs.
Tex.Civ.Prac.&Rem.Code Ann. § 74.351(b)(1)(2).
statute defines a "health care liability claim" as:
[A] cause of action against a health care provider or
physician for treatment, lack of treatment, or other claimed
departure from accepted standards of medical care, or health
care, or safety or professional or administrative services
directly related to health care, which proximately results in
injury to or death of a ...