Monday, December 11, 2017

Justice Jamison dissents over employee status of defendant claiming immunity based on his work for City

Jack Fryday v Linda Michaelski, No. 14-16-00881-CV.   (Tex.App. - Houston [14th Dist.]  Dec. 7, 2017) (majority opinion by Justice Boyce, dissent by Jamisoni in interlocutory appeal)

Fourteenth Court of Appeals panel splits on whether inspector may cloak himself with City's immunity to avoid potential liability in lawsuit over alleged shoddy work in the inspection of a rental home. Plaintiff alleged she had to incur expenses to comply with higher building standard requirements as a result of the faulty inspection, that she was deprived of rental income for the lower level of her rental home, and that the value of her rental home decreased. Majority reversed trial court's denial of inspector's motion to dismiss and rendered judgment for the defendant.

Martha Hill Jameson writes separately, taking issue with the quality of proof on the matter of whether the inspector was an independent contractor or an employee of the City, a key issue in the case for immunity purposes under the election-of-defendants provision of the applicable statute.  

DISSENTING OPINION BY JAMISON

MARTHA HILL JAMISON, Justice.

I disagree that Fryday conclusively established that the trial court lacked subject matter jurisdiction over Michaelski's claims and, therefore, that the trial judge erred in denying Fryday's motion to dismiss. Because the majority holds otherwise, I respectfully dissent.

I agree that this court has appellate jurisdiction over the denial of Fryday's motion to dismiss pursuant to Civil Practice and Remedies Code section § 51.014(a)(5) even though Fryday did not file a summary judgment motion. See Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011)Phillips v. Dafonte, 187 S.W.3d 669, 673-675 (Tex. App.-Houston [14th Dist.] 2006, no pet.). To be entitled to dismissal, Fryday was required to establish that the City was a governmental entity and that he was an employee of the City. See Univ. of Tex. Health Sci. Ctr. at Houston v. Rios, 507 S.W.3d 312, 316 (Tex. App.-Houston [1st Dist.] 2016, pet. granted)see also Lubbock Cty. Water Control & Imp. Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 305-06 (Tex. 2014)Fink v. Anderson, 477 S.W.3d 460, 465-66 (Tex. App.-Houston [1st Dist.] 2015, no pet.).

Parties claiming to be employees of a governmental entity and seeking the application of immunity under the Texas Tort Claims Act bear the initial burden of proving they are employees of a governmental unit. See Olivares v. Brown & Gay Eng'g, Inc., 401 S.W.3d 363, 376-77 (Tex. App.-Houston [14th Dist.] 2013) (holding party claiming to be employee bears burden of proving "that it is in the paid service of a governmental unit and that it is not an independent contractor, agent or employee of an independent contractor, or someone who performs tasks the details of which the governmental unit does not have a legal right to control"), aff'd, 461 S.W.3d 117 (Tex. 2015).

I agree with the majority that Fryday's affidavit provided some evidence relating to his employment status, specifically that he worked part-time and was paid by the hour. 

However, the affidavit does not conclusively establish whether he performs tasks the details of which the City does not have a legal right to control. The affidavit is silent as to several indices of the right to control the details of work normally exercised by an employer as identified in Olivares:
* When and where to begin and stop work;
* Regularity of hours;
* Amount of time spent on particular aspects of the work;
* Tools and appliances used to perform the work; and
* Physical method or manner of accomplishing the end result.[1]
See id.

In addition, the statements in the affidavit in some respects were vague. What is meant by "whenever called upon to do so"? What is meant by "reported directly to the City Administrator if any issues arose"? Other statements are not probative of the right to control. What factor is addressed by Fryday's maintaining an office in City Hall? How does the fact that the City Council reviewed his final results prove that Fryday was not an independent contractor?

Additionally, I disagree with the majority that certain elements of Fryday's jurisdictional argument were undisputed and thus did not require proof. Fryday's affidavit failed to present facts to establish that the City is a governmental unit under the TTCA, that Michaelski's claims could have been brought against the City under the TTCA, or that Fryday's conduct was within the general scope of his employment with the City. While Michaelski did not specifically argue these deficits in her brief, her silence did not relieve Fryday of his burden to establish every element of his defense. See Lenoir v. U.T. Physicians, 491 S.W.3d 68, 75 (Tex. App.-Houston [1st Dist.] 2016, pet. denied)(concluding defendant failed to conclusively prove it was a governmental unit under the TTCA); see also Franka v. Velasquez, 332 S.W.3d 367, 370 (Tex. 2011) (holding defendant had the burden of proving that suit "could have been brought under" the Act and had to offer evidence that the employer's immunity was waived); Kelemen v. Elliott,260 S.W.3d 518, 524 (Tex. App.-Houston [1st Dist.] 2008, no pet.) ("Elliott did not make any assertion before the trial court, and makes none before this Court, that the acts for which Kelemen sued him were in the general scope of his employment."). Any dismissal under section 101.106(f) would therefore be erroneous. See Kelemen, 260 S.W.3d at 524.

I disagree with the majority that the affidavit provided conclusive evidence establishing that the trial court lacked subject matter jurisdiction.[2] I would affirm the trial court's denial of Fryday's motion to dismiss and accordingly, respectfully dissent.

[1] The majority is correct that the Texas Supreme Court stated in Murk v. Scheele that the TTCA's "definition of `employee' does not require that a governmental unit control every detail of a person's work." 120 S.W.3d 865, 867 (Tex. 2003) (emphasis in original). However, the court further stated that a governmental employee is not precluded from being an "employee" simply because he must exercise some independent judgment and, considering other factors demonstrating the governmental employer's right to control his work, the employee was entitled to dismissal based on the TTCA. See id.

[2] Although not necessary to my analysis, I also disagree that the record establishes as a matter of law that the trial court did not consider Michaelski's Exhibit A. Exhibit A was included in the original clerk's record filed in our court on November 14, 2016. The clerk's record further reflects Exhibit A was filed in the trial court on June 27, 2016, which was before the trial court's order was signed. The majority does not mention this fact in its recitation of the admittedly inexplicable subsequent filing by Michaelski.

JACK FRYDAY D/B/A FRYDAY CONSULTING SERVICES, INC., Appellant,
v.
LINDA MICHAELSKI, Appellee.

No. 14-16-00881-CV.
Court of Appeals of Texas, Fourteenth District, Houston.
Majority and Dissenting Opinions Opinions filed December 7, 2017.
Owen Stephen Jones, for Linda Michaelski, Appellee.
William S. Helfand, Avniel J. Adler, for Jack Fryday d/b/a Fryday Consulting Services, Inc., Appellant.
On Appeal from the 125th District Court, Harris County, Texas, Trial Court Cause No. 2016-18523.
Reversed and Rendered.
Panel consists of Justices Boyce, Jamison, and Brown (Jamison, J., dissenting).

MAJORITY OPINION

WILLIAM J. BOYCE, Justice.

This is an interlocutory appeal from the trial court's order denying a motion to dismiss filed by appellant Jack Fryday d/b/a Fryday Consulting Services, Inc. The principal issue presented is whether Fryday was an employee of the City of Clear Lake Shores at the time he allegedly performed a faulty inspection of the rental home of appellee Linda Michaelski. Because the evidence establishes that Fryday was an employee of the City of Clear Lake Shores, we reverse the trial court's order and render judgment dismissing Michaelski's suit against Fryday.

BACKGROUND

Michaelski sued Jack Fryday d/b/a Fryday Consulting Services, Inc. after Fryday allegedly performed "faulty building inspection work" when he inspected her rental home in Clear Lake Shores. In her original petition, she alleged claims for negligence and DTPA violations. She alleged that "[o]n or about August 2014 the Defendant was hired by the City of Clear Lake Shores to inspect the Plaintiff's rental home located at 1019 North Shore, Drive, Clear Lake Shores, Texas 77565 by the City of Clear Lake Shores, Texas." Michaelski alleged that, because of Fryday's faulty inspection, she had to incur expenses to comply with higher building standard requirements, she was deprived of rental income for the lower level of her rental home, and the value of her rental home decreased.

Jack Fryday filed a motion to dismiss, contending that he is entitled to immunity from suit because Michaelski's claims against him "involve conduct within the general scope of his employment as a building official employed by the City of Clear Lake Shores. Under Texas law, therefore, tort claims, such as Plaintiff asserts here must be brought, if at all, against the City of Clear Lake Shores, Fryday's governmental employer." See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.002; 101.106(f) (Vernon 2011).
In her response, Michaelski argued that Fryday is not entitled to immunity because he was not an employee of the City of Clear Lake Shores; instead, she asserted that Fryday was a "private contractor" and "private contractors hired by governmental entities are not entitled to sovereign immunity." She argued that, although she pleaded that the City of Clear Lake Shores "hired the Defendant," she "never said the City of Clear Lake Shores hired the Defendant as an employee."

Fryday contended in reply that (1) Michaelski failed to provide any evidence that Fryday was an independent contractor; and (2) her "own pleadings fail to substantiate how Fryday is an independent contractor of the City of Clear Lake Shores, rather than an immune governmental official." Fryday stated that he was "appointed as the City Building Official in 2009," and served for nearly seven years in that capacity. He stated that his inspection of Michaelski's home was "entirely within the scope of Fryday's position as City Building Official" and his "responsibilities included reviewing all building permit applications and advising the City whether plans or proposals complied with applicable building codes, regulations, or ordinances." Fryday asserted that he "was an officer in the paid service of a governmental unit, sued for conduct within the general scope of his employment and should be dismissed from this lawsuit under Section 101.106(f)." To support these assertions, Fryday pointed to his written declaration attached to his reply.

Michaelski filed a sur-reply to the motion to dismiss, contending that Fryday was not an employee of the City of Clear Lake Shores because "a d/b/a b[y] definition [is] not an employee as the d/b/a is not a person." Michaelski claimed that Fryday was "paid by the City of Clear Lake Shores through 1099's [sic] for the years 2013, 2014 and 2015 not by W2's," and that there are "three 1099's [sic] of the Defendant specifically identifying him as a d/b/a subcontractor only, not as a person, for 2014 and 2015." Michaelski also claimed that Fryday "identifie[d] his work done for Clear Lake Shores as a part time job and not as an employee in a prior suit in the 10th Judicial District Court in Galveston." She argued that Fryday is therefore "not entitled to governmental immunity."

The trial court denied Fryday's motion to dismiss on October 25, 2016. Fryday timely filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2016) (permitting interlocutory appeal from the denial of a motion for summary judgment based on an assertion of immunity by an officer or employee of the State or a political subdivision of the State); Singleton v. Casteel, 267 S.W.3d 547, 549-50 (Tex. App.-Houston [14th Dist.] 2008, pet. denied) (motion to dismiss filed pursuant to section 101.106 may be treated as a motion for summary judgment for purposes of appellate jurisdiction, despite defendant's use of incorrect procedural vehicle).

ANALYSIS

Fryday contends that the trial court erroneously denied his motion to dismiss pursuant to the election of remedies provision in section 101.106(f) because (1) the claims asserted against him individually are based on conduct within the general scope of his governmental employment as the City's building official; and (2) suit could have been brought against the City under the Texas Tort Claims Act.

I. Standard of Review

A motion to dismiss filed by an employee of a governmental unit pursuant to section 101.106(f) is a challenge to the trial court's subject-matter jurisdiction, which we review de novo. Garza v. Harrison, No. 14-16-00615-CV, 2017 WL 3158946, at *2 (Tex. App.-Houston [14th Dist.] July 25, 2017, pet. filed); Singleton, 267 S.W.3d at 550.

II. Texas Tort Claims Act Election of Remedies

Sovereign immunity and governmental immunity protect the State and its political subdivisions, respectively, from lawsuits and liability. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655, 655 n.2 (Tex. 2008)Garza, 2017 WL 3158946, at *3. The Texas Tort Claims Act provides a limited waiver of that immunity for certain suits against governmental entities. Garcia, 253 S.W.3d at 655see also Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2011). After the Texas Tort Claims Act's enactment, "plaintiffs often sought to avoid the Act's damages cap or other strictures by suing governmental employees, since claims against them were not always subject to the Act." Garcia, 253 S.W.3d at 656.

To prevent such circumvention and to protect governmental employees, the Texas Tort Claims Act was amended in 2003 to include an election of remedies provision. Garcia,253 S.W.3d at 656Garza, 2017 WL 3158946, at *3; Kraidieh v. Nudelman, No. 01-15-01001-CV, 2016 WL 6277409, at *3 (Tex. App.-Houston [1st Dist.] Oct. 27, 2016, no pet.) (mem. op.); see also generally Tex. Civ. Prac. & Rem. Code Ann. § 101.106.

The election of remedies provision "force[s] a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable, thereby reducing the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery." Garcia, 253 S.W.3d at 657.

Relevant to this case, the statute provides as follows:
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 if it could have been brought under [the Texas Tort Claims Act] 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 date the motion is filed.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). Thus, an individual defendant is entitled to dismissal upon proof that the plaintiff's suit (1) is based on conduct within the scope of the defendant's employment with a governmental unit, and (2) could have been brought against the governmental unit under the Texas Tort Claims Act. See Laverie v. Wetherbe,517 S.W.3d 748, 752 (Tex. 2017).

Here, the parties do not dispute that the City is a governmental unit and that Michaelski's claims could have been brought against the City under the Texas Tort Claims Act. Nor do the parties appear to dispute that, if Fryday is determined to be a City employee, then his conduct was within the scope of his employment with the City to provide building inspection services. The only disputed issue on appeal is whether Fryday was a City employee at the time he inspected Michaelski's rental home.

III. Employee of a Governmental Unit

The Texas Tort Claims Act defines the term "employee" as "a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control." Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2) (Vernon Supp. 2016).

According to Fryday, the evidence in this case conclusively establishes that he was an employee of the City at the time he inspected Michaelski's home. He points to the declaration he attached to his pleading in the trial court, which states as follows:

DECLARATION OF JACK FRYDAY

I, Jack Fryday declare, on June 22, 2016, under penalty of perjury as follows:
. . .
2. I own and operate a building inspection company called J Fryday Consulting Services. I have provided private building inspection and related services through J Fryday Consulting Services since 2007.
3. In August of 2009, the City of Clear Lake Shores contacted me regarding serving as Building Official for the City. Although the City and I discussed the possibility of entering into a contract for my company to provide service to the City, we never made a contract. Instead, I personally agreed to perform building inspection services for the City on a part[-]time basis, and the City agreed to pay me for the work assigned on a part-time basis. The City Administrator then appointed me personally as the City Building Official with the approval of City Council.
4. I served as Building Official for the City of Clear Lake Shores from approximately August of 2009 through May 30, 2016. In this capacity, I was responsible for reviewing all building permit applications in the City.
5. As City Building Official, I maintained an office at City Hall and shared an assistant with the City Secretary. The work did not take my full time but, whenever called upon to do so, I performed all of the responsibilities of the office of Building Official and reported directly to the City Administrator if any issues arose. My review and interpretations were subject to review by the Board of Adjustment, and the City Council.
6. I was never retained to work for Ms. Michaelski. Any and all work I did was done to advise the City of my opinion of whether plans or proposals complied with applicable building codes, regulations, or ordinances.
7. I have never had a contract to work as an independent contractor for the City of Clear Lake Shores. Instead, I submitted timesheets for the hours I worked for the City, as the official Building Official, and I was paid at the rate of $50 per hour for each hour worked.
Fryday's declaration constitutes evidence that the City paid him between August 2009 and May 2016 for his services as a City Building Official performing building inspection services and reviewing building permit applications for the City. The City did not hire or pay his company "J Fryday Consulting Services;" nor did Fryday have a "contract to work as an independent contractor for the City." He submitted timesheets and was paid for the hours he worked. Thus, Fryday was "in the paid service of a governmental unit" in August 2014, when he inspected Michaelski's home. See id.

"Under the Texas Tort Claims Act, a person is not an employee of a governmental unit if the person is an independent contractor or `performs tasks the details of which the governmental unit does not have the legal right to control.'" Olivares v. Brown & Gay Eng'g, Inc., 401 S.W.3d 363, 368 (Tex. App.-Houston [14th Dist.] 2013), aff'd, 461 S.W.3d 117 (Tex. 2015) (quoting Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam)). "A party can prove right to control in two ways; first, by evidence of a contractual agreement that explicitly assigns a right to control; and second, in the absence of such contractual agreement, by evidence of actual control over the manner in which the work was performed." Id. at 368-69.

The "[Texas Tort Claims] Act's definition of `employee' does not require that a governmental unit control every detail of a person's work." Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam) (emphasis in original) (rejecting argument that physician was not a government employee even though exercise of physician's independent professional judgment was outside of governmental unit's right of control). Thus, even if the City did not have the legal right to control all of Fryday's work as a City Building Official performing building inspection services, that does not exclude him from the definition of "employee." See Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 398 (Tex. App.-Fort Worth 2008, no pet.) (concluding that a city council member was paid by the city and was a city "employee" for purposes of Tort Claims Act immunity, even if the city did not have the legal right to control all of council member's work and she was an elected official).

Fryday's affidavit states that, because the work did not require his full time, he "performed all of the responsibilities of the office of Building Official" whenever he was called upon or instructed to do so, and he "reported directly to the City Administrator if any issues arose." Fryday also maintained an office at City Hall and shared an assistant with the City Secretary. Fryday further explained in his affidavit that he advised the City of his opinion regarding "whether plans or proposals complied with applicable building codes, regulations, or ordinances" but that his "review and interpretations were subject to review by the Board of Adjustment, and the City Council." Fryday's evidence establishes that he was an employee of the City as defined by the Texas Tort Claims Act.

Michaelski argues that "Exhibit A" referred to in her sur-reply shows that Fryday was a subcontractor rather than a City employee. She argues that "Exhibit A" contains her business records affidavit and copies of three 1099 tax forms for years 2013 to 2015 showing that Fryday was paid by the City "through 1099's for the years 2013, 2014 and 2015 not by W2's," and that the tax forms specifically identify him "as a d/b/a subcontractor only, not a person." Michaelski also argues that "Exhibit B," which she attached to her sur-reply and filed in the trial court, shows that Fryday was not an employee of the City. According to Michaelski, "Exhibit B" shows that Fryday "identifies his work done for Clear Lake Shores as a part time job and not as an employee in a prior suit in the 10th Judicial Court in Galveston." "Exhibit B" appears to be a one-page excerpt of an unidentified person's testimony.

Fryday contends that the evidence he presented is uncontroverted because any evidence Michaelski points to "should not be considered by [t]his cou[r]t and is wholly insufficient." In that regard, Fryday first complains that he was never served with or ever saw Michaelski's "Exhibit A" during the trial court proceedings because Michaelski did not attach "Exhibit A" to her sur-reply or file it in the trial court. Fryday argues that there is no record of "Exhibit A" being filed during the trial court proceedings; he contends "Exhibit A" is "not listed as a filing in the trial court proceeding on the Harris County District Clerk's website," and that "neither party requested this Exhibit A when the parties designated the record on appeal." Fryday therefore asserts that this court cannot consider Michaelski's "Exhibit A."

Michaelski does not join issue on Fryday's contentions that she never served him with her "Exhibit A," never attached it to her sur-reply, and never filed it during the trial court proceedings. She makes the following statement in the summary of the argument section of her brief: "The Defendant did receive the Attachment A the 1099's of the d/b/a payments made by the City of Clear Lake Shores to the d/b/a to the Plaintiff's Sur Reply electronically through the e-file system used by the district court clerk as they are a named contact for e service." This statement does not address Fryday's contention that "Exhibit A" was not attached to her sur-reply.

On February 8, 2017, Michaelski filed a letter addressed to the Harris County District Clerk stating in pertinent part as follows:
Re: The Plaintiff Lynda Michaelski v. Jack Fryday, d/b/a Fryday Consulting Services, Inc., request for clerk record documents to be sent to the 14th Court of Appeals. District Court Cause No. 2016-18523 [i]n the 125th District Court, Harris County, Texas.
Dear Court Clerk:
At this time, the Plaintiff files its exhibit A to the Plaintiff's Sur-Reply to the Defendant[`]s Motion to dismiss docket number 70836691; exhibit A is referred to in the Plaintiff's Sur-Reply but inadvertently not filed prior to this date.
Again, thank you in advance.
And on February 9, 2017, Michaelski filed a letter addressed to Harris County District Court Clerk Khiela Jackson, stating in pertinent part:
Re: The Plaintiff Lynda Michaelski v. Jack Fryday, d/b/a Fryday Consulting Services, Inc., request for clerk record documents to be sent to the 14th Court of Appeals. District Court Cause No. 2016-18523 [i]n the 125th District Court, Harris County, Texas.
Dear Ms. Jackson:
At this time[,] the Plaintiff requests that the following documents be supplemented in the clerk's record for the above listed appeal. Thanks in advance for your professional courtesies.
1. Clerk letter record number 73777674 dated the 8th of February, 2017; and,
2. Exhibit A record number 73777675 dated the 8th of February, 2017.
Again, thank you in advance.
Michaelski's February 8, 2017 letter confirms that she did not file "Exhibit A" in the trial court until February 8, 2017 — approximately seven months after she filed the sur-reply and three months after the trial court signed its order denying dismissal. Therefore, based on Michaelski's statement, "Exhibit A" was not before the trial court when it ruled on Fryday's motion to dismiss. We do not consider evidence that was not before the trial court at the time it made its ruling in the case. See Austin Reg'l Clinic, P.A. v. Power, No. 03-11-00601-CV, 2012 WL 2476785, at *1 n.1 (Tex. App.-Austin June 28, 2012, no pet.) (mem. op.); Neely v. Comm'n for Lawyer Discipline, 302 S.W.3d 331, 347 n.16 (Tex. App.-Houston [14th Dist.] 2009, pet. denied)

Accordingly, we cannot consider "Exhibit A" filed on February 8, 2017, because it was not before the trial court when it signed its order denying Fryday's motion to dismiss; we consider only Fryday's declaration and Michaelski's Exhibit B which was attached to her sur-reply as evidence in this case. Contrary to Michaelski's assertion, Exhibit B does not constitute evidence defeating Fryday's claim to status as a City employee. Exhibit B is a copy of a one-page excerpt of what appears to be an unidentified person's testimony in an unidentified proceeding:
Q. I guess before Ike, the hurricanes we remember are Katrina and Rita. And you were working on those storms?
A. Yes, sir.
Q. And then — so, then you took a job with the City of Kemah. Had you ever worked for the City of Kemah before that time?
A. No, sir.
Q. And that was a full-time paying job?
A. No, sir.
Q. It was a part-time job?
A. Yes, sir.
Q. Was it paying?
A. Yeah, I didn't do it free.
Q. Okay. Well, you know these public elected officials like the Mayor and City Council, they don't get paid, right?
A. I understand that. I have been that, too.
Q. Right. You have been what?
A. I have been Mayor.
Q. Of what?
A. Of Shore Acres and then Seabrook.
Q. Okay. And then, so, you're very familiar with the local area and local politics?
A. Yes, sir.
Q. Okay. And you knew Ben Blackidge (phn) I bet?
Michaelski contends that this excerpt shows that Fryday "identifies his work done for Clear Lake Shores as a part time job and not as an employee in a prior suit in the 10th Judicial Court in Galveston." It does not. This excerpt does not reveal (1) the identity of the testifying witness; (2) the proceeding in which the witness testified; (3) what work the witness performed; and (4) that the witness was not employed by the City of Clear Lake Shores. At most, the excerpt shows that the testifying witness at some point in time "took a job with the City of Kemah" on a part-time basis and was paid for the work performed. The excerpt does not mention Fryday or the City of Clear Lakes Shores. Thus, Exhibit B constitutes no evidence with respect to Fryday's status as a City employee when he inspected Michaelski's rental home.
The only evidence of Fryday's employment status is Fryday's declaration. We already have concluded that Fryday's declaration establishes that he was an employee of the City as defined by the Texas Tort Claims Act.

The trial court erred by denying Fryday's motion to dismiss under section 101.106(f). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).

CONCLUSION

We reverse the trial court's order denying Fryday's motion to dismiss and render judgment dismissing Michaelski's suit against Fryday.

DISSENTING OPINION

MARTHA HILL JAMISON, Justice.

I disagree that Fryday conclusively established that the trial court lacked subject matter jurisdiction over Michaelski's claims and, therefore, that the trial judge erred in denying Fryday's motion to dismiss. Because the majority holds otherwise, I respectfully dissent.

Thursday, December 7, 2017

Walgreens v Stewart: Assault not med-mal - Good to have that confirmed by the Court of Appeals

Houston Court of Appeals rebuffs pharmacy chain's bid to have suit in which plaintiff alleged he was assaulted by store employee treated as a health care liability claim subject to the strictures of the the Texas Medical Liability Act, including the expert report requirement. Walgreen Company v Charles Stewart, No. 01-17-00080-CV (Tex.App. - Houston, Nov. 30, 2017) 

WALGREEN COMPANY, Appellant,
v.
CHARLES STEWART, Appellee.

No. 01-17-00080-CV.
Court of Appeals of Texas, First District, Houston.
Opinion issued November 30, 2017.
   
Phil Griffis, Jerry D. Mason, for Walgreen Co., Appellant.
Harry C. Arthur, Charles Stewart, for 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. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2013).[2]

Section 74.001(a)(13) of the Texas Civil Practices and Remedies Code states that a "health care liability claim" is
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 claimant, whether the claimant's claim or cause of action sounds in tort or contract.
Id. § 74.001(a)(13). This definition consists of three elements: (1) the defendant is a health care provider or physician; (2) the claimant's cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's alleged departure from accepted standards proximately caused the claimant's injury or death. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012). The party asserting application of the TMLA carries the burden to show the causes of action asserted are health care liability claims. Reddy v. Veedell, 509 S.W.3d 435, 438 (Tex. App.-Houston [1st Dist.] 2014, pet. denied)Brown v. Villegas, 202 S.W.3d 803, 806 (Tex. App.-San Antonio 2006, no pet.). Walgreen contends that Stewart's suit satisfies all three elements.
Walgreen argues that it qualifies as a health care provider under the TMLA. Specifically, it contends that "[its] activities involved in the dispensing of prescription medication to [Stewart] resulted in this claim and, therefore, [Walgreen] is a `health care provider' for purposes of the suit."

Section 74.001(12)(A) defines "health care provider" as "any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including: . . . (iv) a pharmacist[.]" TEX. CIV. PRAC. & REM. CODE § 74.001(12)(A)(iv) (West 2015). "Pharmacist" is narrowly defined for the purposes of Chapter 74 as "one licensed under Chapter 551, Occupations Code, who, for the purposes of this chapter, performs those activities limited to the dispensing of prescription medicines which result in health care liability claims and does not include any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products." Id. § 74.001(22). Therefore, a pharmacist can be sued pursuant to Chapter 74 only for "the dispensing of prescription medicines that result in health care liability claims." Randol Mill Pharmacy v. Miller, 465 S.W.3d 612, 617 (Tex. 2015).
In this case, Stewart has sued a pharmacy, Walgreen, not the individual pharmacist employed by Walgreen. Walgreen argues that this distinction is irrelevant for purposes of the TMLA. In support of its argument, Walgreen relies on Rendon v. Walgreen, 144 F. Supp.3d 894 (N.D. Tex. 2015). There, the plaintiff sued Walgreen alleging that its pharmacist filled his prescription with the wrong medication, causing him to fall and injure himself after ingesting the medicine. See id. at 895. The court stated that the fact that the plaintiff sued a pharmacy rather than a pharmacist was immaterial because claims against both pharmacists and pharmacies are subject to the TMLA "with respect to `those activities limited to the dispensing of prescription medicines which result in health care liability claims.'" Id. at 898 (quoting Randol Mill Pharmacy, 465 S.W.3d at 619).[3] The court concluded that "[t]he only action Walgreen is alleged to have taken—through its employee, the pharmacist—is that it gave Rendon the wrong medicine. Therefore, because Rendon's claims are solely premised on Walgreen's `dispensing of prescription medicines,' Walgreen is a `health care provider' for TMLA purposes in this case." Id.
"[L]icensed pharmacists and pharmacies are health care providers for purposes of the Medical Liability Act with respect to `those activities limited to the dispensing of prescription medicines which result in health care liability claims.'" Randol Mill Pharmacy,465 S.W.3d at 619 (citing TEX. CIV. PRAC. & REM. CODE § 74.001(22)). "They are not considered health care providers with respect to `any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products.'" Randol Mill Pharmacy, 465 S.W.3d at 619. Here, Stewart's claims are not premised on the dispensing of prescription medicines. Rather, Stewart alleges that a Walgreen employee, not its pharmacist, physically assaulted Stewart while he was arguing about a prescription with the pharmacist, and that Walgreen negligently hired, supervised, trained, and retained the non-pharmacist employee who he alleges assaulted him. Stewart's claims are not based on any effect arising from Walgreen's dispensing of prescription medicines, and therefore, Walgreen is not a health care provider for TMLA purposes in this case. See id.[4]

We hold that Stewart's claims are not health care liability claims, and the trial court properly denied Walgreen's motion to dismiss Stewart's suit. Accordingly, we overrule Walgreen's issue.[5]

Conclusion

We affirm the trial court's order denying Walgreen's motion to dismiss.

[1] Stewart alleges that Walgreen is liable for its employee's conduct under the doctrine of respondeat superior.
[2] Section 74.351(a) requires a plaintiff, in cases involving a health care liability claim, to serve on the defendant one or more expert reports, on or before the 120th day after the defendant's original answer is filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2013).
[3] In Randol Mill Pharmacy v. Miller, the Texas Supreme Court held that the pharmacy and its employees were engaged in "the dispensing of prescription medicines" when they compounded the injectable drug administered to the plaintiff by her physician which caused the plaintiff to have an adverse reaction. 465 S.W.3d 612, 621 (Tex. 2015).
[4] In Randol Mill Pharmacy, the Texas Supreme Court noted that in the typical case against a pharmacy involving claims of incorrectly filled prescriptions, courts generally agree that the TMLA applies. 465 S.W.3d at 617 (citing Walgreen Co. v. Hieger, 243 S.W.3d 183, 185-86 (Tex. App.-Houston [14th Dist.] 2007, pet. denied)(analyzing sufficiency of expert report in claim alleging pharmacy incorrectly filled prescription with wrong medication); HEB Grocery Co. v. Farenik, 243 S.W.3d 171, 173 (Tex. App.-San Antonio 2007, no pet.) (same); see also Gingrich v. Scarborough, No. 09-09-00211-CV, 2010 WL 1711067, at *5 (Tex. App.-Beaumont Apr. 29, 2010, no pet.) (mem. op.) (holding that plaintiff's expert report was insufficient as to claim that pharmacy negligently filled prescription for "excessive" medications that led to drug toxicity).
[5] Because Stewart's suit does not satisfy the first element of a health care liability claim, we need not consider the second and third elements. See Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex. 2014) ("Under the Medical Liability Act, a health care liability claim must satisfy three elements[.]").

Walgreens' Notice of Interlocutory Appeal
from denial by the 125th District Court 
Appealed Order Denying Dismissal 


Friday, November 17, 2017

Does this Houston personal injury attorney beg to be SLAPPed or what? Ivey Law Firm P.C. sues over unfavorable Google review

Would you hire a lawyer if you knew that he would sue you for libel if you were dissatisfied with his services and said so in a public forum? 

A new low for the personal injury bar: Houston attorney Jack Todd Ivey sues poster of unfavorable customer review (apparently a family member of an unhappy former client) on per-se defamation theory, claiming to have been harmed by having his firm called "a fraud" in a Google review of his lawfirm. Let me suggest that the lawsuit will do more harm to the firm's reputation than the negative review, not to mention raising questions as to whether the positive reviews are genuine, and not manufactured or facilitated. 

Here is a screen shot of the Google Review and the owner's (Ivey's) response:




Lawsuit with textbook-example potential of how not to do law firm PR 



ALSO OF INTEREST: TEXAS ANTI-SLAPP STATUTE

The TCPA is often characterized as an "anti-SLAPP" statute, i.e., a means by which defendants targeted by "Strategic Lawsuits Against Public Participation," or SLAPP, suits can move for dismissal of such lawsuits. See id. § 27.002; see, e.g., Serafine v. Blunt (Serafine I), 466 S.W.3d 352, 365-67 (Tex. App.-Austin 2015, no pet.) (Pemberton, J., concurring) (summarizing TCPA legislative history and emphasis on "anti-SLAPP" concerns). The TCPA allows a motion to dismiss a "legal action" that is "based on, relates to, or is in response to a party's exercise of," as relates to this appeal, "the right of free speech." Tex. Civ. Prac. & Rem. Code § 27.003(a). The Act defines "the exercise of the right of free speech" as "a communication made in connection with a matter of public concern." Id. § 27.001(3). A "matter of public concern" is defined as, relevant to this appeal, "an issue related to . . . a good [or] product . . . in the marketplace." Id. § 27.001(7)(E). A "`[c]ommunication' includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1). The Texas Supreme Court has held that the Act protects both public and private communications. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2016) (per curiam) (explaining its holding in Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam)).

In enacting the TCPA, the legislature explained that its overarching purpose is "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code § 27.002. "To effectuate the statute's purpose, the Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant's exercise of these First Amendment rights." Coleman, 512 S.W.3d at 898. In the first step, the party filing a motion to dismiss under section 27.003 of the TCPA bears the burden to show by a "preponderance of the evidence" that the "legal action" is "based on, relates to, or is in response to," as relevant to this appeal, the party's "exercise of the right of free speech." Tex. Civ. Prac. & Rem. Code §§ 27.003(a), .005(b); Coleman, 512 S.W.3d at 898. If the movant satisfies this burden, the trial court must dismiss the lawsuit unless the nonmovant "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code § 27.005(c); see Coleman, 512 S.W.3d at 899. Even when the nonmovant meets this burden, however, the trial court still must dismiss the lawsuit if the movant "establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claims." Tex. Civ. Prac. & Rem. Code § 27.005(d); see Coleman, 512 S.W.3d at 899. In determining whether to dismiss an action, the trial court must consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Tex. Civ. Prac. & Rem. Code § 27.006(a); see Serafine I,466 S.W.3d at 357.

CIVIL PRACTICE AND REMEDIES CODE

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

SUBTITLE B. TRIAL MATTERS

CHAPTER 27.  ACTIONS INVOLVING THE EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS

Sec. 27.001.  DEFINITIONS.  In this chapter:
(1)  "Communication" includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.
(2)  "Exercise of the right of association" means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.
(3)  "Exercise of the right of free speech" means a communication made in connection with a matter of public concern.
(4)  "Exercise of the right to petition" means any of the following:
(A)  a communication in or pertaining to:
(i)  a judicial proceeding;
(ii)  an official proceeding, other than a judicial proceeding, to administer the law;
(iii)  an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;
(iv)  a legislative proceeding, including a proceeding of a legislative committee;
(v)  a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;
(vi)  a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;
(vii)  a proceeding of the governing body of any political subdivision of this state;
(viii)  a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or
(ix)  a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;
(B)  a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;
(C)  a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;
(D)  a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and
(E)  any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.
(5)  "Governmental proceeding" means a proceeding, other than a judicial proceeding, by an officer, official, or body of this state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal government.
(6)  "Legal action" means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.
(7)  "Matter of public concern" includes an issue related to:
(A)  health or safety;
(B)  environmental, economic, or community well-being;
(C)  the government;
(D)  a public official or public figure; or
(E)  a good, product, or service in the marketplace.
(8)  "Official proceeding" means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.
(9)  "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person's duties:
(A)  an officer, employee, or agent of government;
(B)  a juror;
(C)  an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy;
(D)  an attorney or notary public when participating in the performance of a governmental function; or
(E)  a person who is performing a governmental function under a claim of right but is not legally qualified to do so.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.002.  PURPOSE.  The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.003.  MOTION TO DISMISS.  (a)  If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.
(b)  A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action.  The court may extend the time to file a motion under this section on a showing of good cause.
(c)  Except as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.004.  HEARING.  (a)  A hearing on a motion under Section 27.003 must be set not later than the 60th day after the date of service of the motion unless the docket conditions of the court require a later hearing, upon a showing of good cause, or by agreement of the parties, but in no event shall the hearing occur more than 90 days after service of the motion under Section 27.003, except as provided by Subsection (c).
(b)  In the event that the court cannot hold a hearing in the time required by Subsection (a), the court may take judicial notice that the court's docket conditions required a hearing at a later date, but in no event shall the hearing occur more than 90 days after service of the motion under Section 27.003, except as provided by Subsection (c).
(c)  If the court allows discovery under Section 27.006(b), the court may extend the hearing date to allow discovery under that subsection, but in no event shall the hearing occur more than 120 days after the service of the motion under Section 27.003.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), Sec. 1, eff. June 14, 2013.


Sec. 27.005.  RULING.  (a)  The court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the motion.
(b)  Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party's exercise of:
(1)  the right of free speech;
(2)  the right to petition; or
(3)  the right of association.
(c)  The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.
(d)  Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), Sec. 2, eff. June 14, 2013.


Sec. 27.006.  EVIDENCE.  (a)  In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.
(b)  On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.007.  ADDITIONAL FINDINGS.  (a)  At the request of a party making a motion under Section 27.003, the court shall issue findings regarding whether the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation.
(b)  The court must issue findings under Subsection (a) not later than the 30th day after the date a request under that subsection is made.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.008.  APPEAL.  (a)  If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal.
(b)  An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court's failure to rule on that motion in the time prescribed by Section 27.005.
(c)  Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1042, Sec. 5, eff. June 14, 2013.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), Sec. 5, eff. June 14, 2013.


Sec. 27.009.  DAMAGES AND COSTS.  (a)  If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:
(1)  court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require; and
(2)  sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.
(b)  If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's fees to the responding party.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.010.  EXEMPTIONS.  (a)  This chapter does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.
(b)  This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.
(c)  This chapter does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action.
(d)  This chapter does not apply to a legal action brought under the Insurance Code or arising out of an insurance contract.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), Sec. 3, eff. June 14, 2013.


Sec. 27.011.  CONSTRUCTION.  (a)  This chapter does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.
(b)  This chapter shall be construed liberally to effectuate its purpose and intent fully.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.