SHILOH TREATMENT CENTER INC II LLC v. WARD (2020)

OPINION

Shiloh Treatment Center, Inc., Shiloh II, LLC, Behavioral Training Research, Inc., and Clay Dean Hill (collectively, Shiloh), along with other nonparties, operate facilities for young people with mental disabilities. Destin Ward lived in one of those facilities and received boarding and schooling services. Ten years ago, Ward was off the property, walking down a local street, when he was struck by a car and injured. Ward sued Shiloh, asserting a negligence-based theory of liability based on Shiloh's inattentiveness that permitted Ward to wander from the premises. Shiloh moved for dismissal of the suit on an argument that Ward's claims were really health care liability claims, Ward had not timely filed a statutorily required expert report for his health care liability claim, and Ward's failure to do so mandated dismissal.¹ The trial court denied Shiloh's motion and we affirmed, holding that Ward's suit was not a health care liability claim. Shiloh did not appeal; instead, on remand, it filed a second motion to dismiss with the same trial court, four years later, relying on same argument but with more evidence in support of its position. The trial court denied the second motion as well.

Now, ten years after Ward's injuries, Shiloh appeals the denial of its second motion to dismiss. In two issues, Shiloh argues it is not barred from taking a second bite at the apple with another motion to dismiss and the trial court erred in denying its second motion.

We affirm.

The Two Dismissal Motions

Shiloh's first motion to dismiss argued it is a health care provider, it provides medical and health care services, and Ward's injuries arose out of its provision of medical and health care services. Regardless if Ward understood his claims to be health care liability claims, according to Shiloh, the failure to timely file an expert report required dismissal of Ward's suit. Ward responded that he was not asserting a health care liability claim, Shiloh does not provide “medical care and treatment under any definition,” and no expert report was required. The trial court denied Shiloh's motion to dismiss Ward's suit.

Shiloh appealed, and we affirmed the trial court's ruling. See Shiloh Treatment Ctr., Inc. v. Ward, 510 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (Shiloh I). We held that Ward's suit did not assert a health care liability claim, and thus, the Texas Medical Liability Act's provision requiring an expert report within 120 days did not apply. Id. at 38–41; see Tex. Civ. Prac. & Rem. Code § 74.351(a). And we remanded the suit to the trial court for additional proceedings. Shiloh I, 510 S.W.3d at 41. Shiloh did not appeal this Court's ruling to the Texas Supreme Court.

On remand, the parties engaged in various pretrial matters for four additional years. Then, in 2019, Shiloh filed a second TMLA motion to dismiss. Shiloh's argument has not changed; the difference is that, for its second motion, Shiloh has attached additional affidavits and some documentary evidence in support of its argument that it is a health care provider and Ward's claims are health care liability claims. The trial court held a hearing on Shiloh's second motion and denied it. Shiloh appeals.

Shiloh's position on appeal, as stated in its appellate brief, is that this Court's 2015 opinion “identified the kinds of evidence [this Court would have] required to find [that the Shiloh parties] were health care providers.” Shiloh argues it now has “included the evidence identified by this court” and “justice” requires it be allowed to obtain a TMLA dismissal on its second try. But Shiloh also acknowledges that the information attached to the new affidavits was within its knowledge and in its possession when it moved for dismissal the first time in 2013.

Ward responds that Shiloh is bound by this Court's holding in Shiloh I “based on the record chosen by [Shiloh] to present to the trial court and this Court.” Under a law-of-the-case theory, Ward argues Shiloh cannot relitigate the matters resolved against it in Shiloh I, a ruling it chose not to appeal.

TMLA Dismissal and its Underlying Purpose

The TMLA's “principal purpose is to reduce the expense of health care liability claims.” Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011). “The Legislature's intent in passing the TMLA was to ensure healthcare providers did not expend resources defending against facially frivolous suits․” Mendez-Martinez v. Carmona, 510 S.W.3d 600, 606 (Tex. App.—El Paso 2016, no pet.) (citing Scoresby, 346 S.W.3d at 554). Thus, the statute's dismissal provisions are triggered at the outset of litigation before the defending party expends resources on discovery or other defensive measures. Tex. Civ. Prac. & Rem. Code § 74.351(a).

The statute requires the plaintiff to serve an expert report within 120 days of the defendant's answer. Id. The expert report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question and (2) it must provide a basis for the trial court to conclude that the claims have merit. Scoresby, 346 S.W.3d at 556. In other words, the expert report must have enough information to place the health care provider on notice of what specific conduct is at issue in their particular case and to provide a judge with no medical training with the information needed to determine whether the health care liability claim is frivolous. Clapp v. Perez, 394 S.W.3d 254, 258 (Tex. App.—El Paso 2012, no pet.).

The TMLA dismissal provisions were not intended to create a “procedural minefield”; instead, they function “as a gatekeeper” to flag frivolous cases for which no qualifying expert report has been obtained while allowing nonfrivolous cases to move forward. Certified EMS, Inc. v. Potts, 355 S.W.3d 683, 694 (Tex. App.—Houston [1st Dist.] 2011), aff'd, 392 S.W.3d 625 (Tex. 2013); Mendez-Martinez, 510 S.W.3d at 606.

This appeal raises the issue of whether a defendant is permitted to pursue a TMLA dismissal, lose that motion, lose it again on appeal, and then try a second time a couple years later. The Texas Supreme Court has recognized that, under certain circumstances, permitting multiple appeals of TMLA motions can be “simply wasteful.” Scoresby, 346 S.W.3d at 556 (while discussing Ogletree v. Matthews, 262 S.W.3d 316, 320–21 (Tex. 2007), stating that “permitting two such appeals—one before the thirty-day cure period and one after—is simply wasteful”). This scenario, too, could allow for waste of judicial resources and contravene the underlying purposes of the TMLA dismissal procedures, one of which is to weed out nonmeritorious health care liability claims at the outset of litigation. See Mangin v. Wendt, 480 S.W.3d 701, 713 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Ward filed suit over eight years ago. Shiloh already moved for dismissal in 2013 and lost. Presumably, the parties have engaged in discovery and the case is approaching readiness for trial after this length of time. At this stage, several years into the litigation, one must imagine that Shiloh is aware of the claims against it. Cf. Scoresby, 346 S.W.3d at 556 (stating that one of purposes of requiring an expert report is to inform the defendant of the specific conduct the plaintiff has called into question).

Law of the Case Doctrine and its Underlying Purpose

The law of the case doctrine shares some of the efficiency objectives of the TMLA. The law of the case doctrine, when applied, requires that questions of law decided on appeal to a court of last resort govern the case throughout its subsequent stages. City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 337 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). It can apply even when the appeal does not reach the court of last resort: “Where a losing party fails to avail itself of an appeal in the court of last resort, but allows the case to be remanded for further proceedings, the points decided by the court of appeals will be regarded as the law of the case and will not be reexamined.” Id. at 338; see Lee v. Lee, 44 S.W.3d 151, 154 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).

Application of this doctrine is flexible, left to the discretion of the court, and determined according to the particular circumstances of the case. Precast, 60 S.W.3d at 337. The doctrine is intended to achieve uniformity of decisions and judicial economy and efficiency by narrowing the issues in successive stages of the litigation. Id. The doctrine is based on public policy and is aimed at putting an end to litigation. Id.

With these policies in mind, we turn to Shiloh's appellate issues.

Issues on Appeal

Shiloh raises two issues on appeal, which it phrases as follows:

1. Whether the claims brought by Plaintiff/Appellee Destin Ward are health care liability claims governed by the Texas Medical Liability Act set out in Chapter 74 of the Texas Civil Practice and Remedies Code.

2. Whether Appellants are Barred from Pursing a Second Motion to Dismiss Based Upon Appellee's failure to serve the expert report required by Texas Civil Practice and Remedies Code section 74.351 by this Court's April 21, 2015 Decision.

As explained below, we conclude that the answer to the second question is yes because we have already answered no to the first question.

The Law of the Case Doctrine, as Applied, Prohibits Shiloh from Relitigating the Question of Law Already Decided in Its First Appeal

In its first issue, Shiloh asks whether Ward's claims are health care liability claims under the TMLA. Whether a claim is a health care liability claim under the TMLA is a question of law reviewed de novo.² Baylor Scott and White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019). To qualify as a health care liability claim, three elements must be met: (1) a physician or health care provider must be a defendant; (2) the claim at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's act or omission complained of must proximately cause the injury to the claimant. Psychiatric Sols., Inc. v. Palit, 414 S.W.3d 724, 725–26 (Tex. 2013); see Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) (defining “health care liability claim”).

Shiloh moved to dismiss Ward's suit in 2013 on the argument that Ward was asserting health care liability claims. The trial court denied its motion. This Court affirmed, holding that “Ward has not asserted a health care liability claim.” Shiloh I, 510 S.W.3d at 41.

When an intermediate court issues its opinion and judgment to affirm the denial of a TMLA motion to dismiss, the losing party has options. It may seek an appeal of the intermediate court's ruling to the Texas Supreme Court or it may allow the intermediate court's mandate to issue without pursuing further appeal, return to the trial court on remand, and continue with pretrial matters. Cf. Tex. R. App. P. 53.1. Shiloh chose the second option. It did not file a petition for review of the Shiloh I opinion and judgment. It returned to the trial court on remand and pursued pretrial matters for four more years.

When Shiloh chose that option, our holding in Shiloh I—which resolved a question of law: whether Ward asserted a health care liability claim—became the law of the case for the trial court and this Court. See Precast, 60 S.W.3d at 337; cf. Barber v. Mercer, 303 S.W.3d 786, 792–93 (Tex. App.—Fort Worth 2009, no pet.) (doctrine did not apply due to “unique posture” of case in which first appeal was dismissed for want of jurisdiction without resolving question of law).

While we recognize there is some flexibility in whether to rely on the law of the case doctrine, we have concluded that this is not a circumstance that would support retreading a decided issue. We reach this conclusion for several reasons. First, Shiloh concedes that the evidence it seeks to rely on in 2020 was available when it first moved for dismissal in 2013. To the extent the TMLA and the law of the case doctrine derive from concerns over judicial economy, the possibility of allowing Shiloh two bites at the apple with four years of wasted resources by the parties and the courts in the interim, is contrary to that concern. See id. (because allegedly “new” facts already existed and were known at time of first resolution of issue, holding that law of the case doctrine applied).

Second, there is real potential for misuse of the TMLA dismissal procedures if successive attempts were to be permitted. If a TMLA movant can lose at the intermediate court, return to the trial court, and try again with a different chosen collection of supporting evidence, perhaps he can do so a third, fourth, or fifth time. We cannot agree the legislature envisioned this approach to the statute's summary-dismissal procedures, which were designed to achieve speedy dismissal of frivolous claims at the outset of litigation, before discovery and before the expenditure of judicial and party resources.³ See Mangin, 480 S.W.3d at 713.

Third, the practice that Shiloh advocates, in which a defendant loses on appeal, accepts a remand, and then reurges the same point later in the litigation, would diminish the intermediate court's initial resolution of the matter to an advisory opinion, which the law does not allow. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); see also State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (“[A] decision that does not bind the parties is, by definition, an advisory opinion prohibited by Texas law.”). If Shiloh were permitted to relitigate this issue after losing on the same issue in this Court, what purpose would our earlier attention to the matter have served? Any? Under Shiloh's theory, the expended judicial resources would be a nullity, neither resolving the issue the Court was purportedly asked to decide nor preventing the losing party from asking the same question again, searching for a different answer. This goes beyond being “simply wasteful” and impermissibly approaches an advisory opinion. Cf. Scoresby, 346 S.W.3d at 556.

Shiloh argues that the public policy underlying the law of the case doctrine “pales in comparison to the overriding public policy of achieving justice under the laws,” which Shiloh argues is served by allowing it to better wrangle its evidence and present it a second time, four years later. If Shiloh can win on a second try, it argues, it should be allowed that victory, “regardless of the law-of-the-case doctrine.”⁴ But access to TMLA dismissal is not unlimited and will not predominate over all other policy concerns. For example, a health care provider may waive the right to seek TMLA dismissal through its handling of the litigation. See Memorial Hermann Hosp. Sys. v. Hayden, No. 01-13-00154-CV, 2014 WL 2767128, at *9–10 (Tex. App.—Houston [1st Dist.] June 17, 2014, pet. denied) (mem. op.) (concluding that health care provider waived right to seek dismissal of health care liability claim); In re Sheppard, 197 S.W.3d 798, 801–02 (Tex. App.—El Paso 2006, orig. proceeding) (same). We do not resolve this appeal on waiver grounds. We note only that a perceived right to TMLA dismissal is subject to recognized limitations. We conclude that, under the procedural posture of this case, the law of the case doctrine is one of them.

To recap, seven years ago Shiloh took the position that Ward was asserting a health care liability claim against it and moved for dismissal for failure to serve an expert report. The trial court denied its motion, and Shiloh appealed. This Court held that Ward did not assert a health care liability claim, so no expert report was required. That holding resolved a question of law. Shiloh did not appeal this Court's decision to the Texas Supreme Court. It accepted remand, and this Court's mandate issued. Our ruling became the law of the case for the remainder of the suit. Four years later, Shiloh filed a second motion to dismiss, making the same argument, but attaching a different collection of evidence to support its claim. The law of the case doctrine counsels against relitigating the issue and we see no reason to exercise our discretion to withdraw the doctrine's application.

We overrule Shiloh's second issue because we have already resolved its first issue against it.

Conclusion

We affirm.

FOOTNOTES

1.   See Tex. Civ. Prac. & Rem. Code § 74.351(b).

2.   Shiloh acknowledges that “the issue of whether a claim is a health care liability claim to which Chapter 74 of the Texas Civil Practice and Remedies Code applies is reviewed de novo.”

3.   We note that this is not a situation in which a defendant moves for dismissal, the plaintiff is granted an extension to cure deficiencies in an expert report, and, after the 30-day extension period ends, the defendant moves again for dismissal. See Curnel v. Houston Methodist Willowbrook Hosp., No. 01-18-01054-CV, 2019 WL 7341669 (Tex. App.—Houston [1st Dist.] Dec. 31, 2019, no pet.) (mem. op.). The concerns we raise here about repeated attempts to obtain dismissal would not apply to the post-extension context.

4.   Shiloh notes in its appellate brief that “it is common for defendants in health care liability claims to file more than one motion to dismiss based upon the failure to file an expert report, the failure to file an adequate expert report, or even whether a case is a health care liability claim,” and argues that what it attempts is similar. Shiloh cites four cases in support of its argument. All are distinguishable. In the first one, the second motion was filed after a failed mandamus, not an appeal on the merits. See Terry v. Schiro, No. 01-07-00060-CV, 2007 WL 2132461, at *1 (Tex. App.—Houston [1st Dist.] July 26, 2007, pet. denied) (mem. op.). In the second one, there were two motions and two hearings followed by a single ruling, which was appealed only once. See Konasiewicz v. Garza, No. 13-15-00058-CV, 2015 WL 4594057, at *4 (Tex. App.—Corpus Christi July 30, 2015, pet. denied) (mem. op.). In the third one, the second motion was filed after an extension to cure, not after a failed appeal. See Women's Clinic of S. Tex. v. Alonzo, No. 13-10-00159-CV, 2011 WL 1106698, at *2 (Tex. App.—Corpus Christi Mar. 24, 2011, no pet.) (mem. op.); see also supra note 3. In the fourth one, the first appeal was dismissed for want of jurisdiction without reaching the merits. See Barber v. Mercer, 303 S.W.3d 786, 793 (Tex. App.—Fort Worth 2009, no pet.) (holding that the law of the case doctrine does not apply in the “unique posture of this case” because the intermediate court “dismissed the first interlocutory appeal for want of jurisdiction” without reaching the merits).

Sarah Beth Landau, Justice