Albertson Co., Inc. v. Cty. of Dall.

• Court: Texas Court of Appeals
• Writing for the Court: Tracy Christopher, Chief Justice
• Citation: 691 S.W.3d 697
• Docket Number: 14-23-00279-CV,14-23-00299-CV
• Decision Date: 21 May 2024
• Parties: ALBERTSON COMPANIES, INC., et al., Appellants v. COUNTY OF DALLAS, Appellee SPCSA PLLC a/k/a Shavano Oaks Pharmacy, Appellant v. County of Bexar, Appellee

691 S.W.3d 697

ALBERTSON COMPANIES, INC., et al., Appellants

v.COUNTY OF DALLAS, Appellee

SPCSA PLLC a/k/a Shavano Oaks Pharmacy, Appellant

v.County of Bexar, Appellee

NO. 14-23-00279-CV, NO. 14-23-00299-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed May 21, 2024

On Appeal from the 152nd District Court, Harris County, Texas, Trial

Court Cause Nos. 2018-77098 & 2018-77066

Russell H. Roden, Jeffrey Blake Simon, Dallas, Rebecca Phillips, W. Mark Lanier, Dara G. Hegar, Houston, JoDee Neil, for Appellee.

Justin Bernstein, Austin, Kimberly Paige Harris, Peter S. Wahby, Gregory Franklin, David Ross Noel Taubenfeld, Timothy Newman, Dallas, David Hill Bradley, Houston, for Appellant.

Panel consists of Chief Justice Christopher and Justices Wise and Wilson.

OPINION

Tracy Christopher, Chief Justice

These are consolidated appeals from two interlocutory orders denying motions to dismiss under the Texas Medical Liability Act. Many questions have been presented, but we only consider one of them: whether a county is a "person" at common law. Our answer is "no."

BACKGROUND

This case comes to us from the multidistrict litigation arising out of the opioid crisis.

Dallas County and Bexar County sued a number of manufacturers, distributors, and retail pharmacies of prescription opioids. As to the Pharmacies, only certain of which are before us now,¹ the Counties asserted a variety of claims, including that the Pharmacies were negligent and violated their standard of care in their dispensing of opioids. Broadly speaking, the Counties alleged that the Pharmacies dispensed the opioids while systematically ignoring red flags indicating that the opioids were being abused and diverted into secondary, criminal markets.

In two separate motions, the Pharmacies argued that the Counties’ claims should be dismissed because the claims were health care liability claims and the Counties had not served them with expert reports within 120 days of their original answers, as required by the TMLA. The Counties filed responses, arguing several reasons for why the TMLA did not apply. The MDL court agreed with the Counties without stating its reasoning and denied both of the Pharmacies’ motions, The Pharmacies then brought these interlocutory appeals of the MDL court’s orders, which we consolidated.

ANALYSIS

A claimant asserting a health care liability claim must serve each defendant physician or health care provider with an expert report providing a fair summary of the expert's opinion regarding the applicable standard of care, the manner in which the defendant breached the standard of care, and the causal relationship between the failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code § 74.351(a). If the claimant fails to serve the expert report within the time allotted by the TMLA, then the claimant’s health care liability claim is subject to dismissal. See Tex. Civ. Prac. & Rem. Code § 74.351(b).

There is no dispute here that the Counties did not serve the Pharmacies with an expert report. But the Counties contend that the TMLA does not apply for various reasons, including that the Counties are not claimants within the meaning of the TMLA, that their claims are not health care liability claims, and that the Pharmacies are not physicians or health care providers. We only consider the first of these arguments. And because that argument raises a matter of statutory interpretation, our review is de novo. See Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010).

The TMLA defines a claimant as "a person, including a decedent’s estate, seeking or who has sought recovery of damages in a health care liability claim." See Tex. Civ. Prac. & Rem. Code § 74.001(a)(2). All parties agree that the Counties are not a "decedent’s estate," but they disagree as to whether the Counties qualify as a "person."

The Pharmacies refer us to the Code Construction Act, which instructs us that the word "person" includes a "government or governmental subdivision," such as a county. See Tex. Gov’t Code § 311.005(2). But that statutory definition is qualified. It applies "unless the statute or context in which the word or phrase is used requires a different definition." See Tex. Gov’t Code § 311.005. That qualification is triggered here because the word "person" is an undefined "legal term or word of art," and the TMLA provides that such words must be construed according to the common law. See Tex. Civ. Prac. & Rem. Code § 74.001(b) ("Any legal term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common law."); Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 178 (Tex. 2012) ("Person is not defined in the TMLA and therefore must be given its common law meaning.").

[1] We normally discern a word’s common law meaning by referring to the body of law derived from judicial decisions. See Lyda Swinerton Builders, Inc. v. Cathay Bank, 409 S.W.3d 221, 243 n.19 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). But we can also consider the definitions compiled in Black’s Law Dictionary. See Coming Attractions Bridal & Formal, Inc. v. Tex. Health Res., 595 S.W.3d 659, 663 n.8 (Tex. 2020) (considering that dictionary when deciding whether a corporation was included within the common law meaning of person).

Black’s Law Dictionary contains three entries for the word "person":

1. A human being.

2. An entity (such as a corporation) that is recognized by law as having the rights and duties of a human being.

3. The living body of a human being .

Black’s Law Dictionary 1162 (7th ed. 1990). There is no mention in any of these entries of counties or political subdivisions.

[2] Turning next to the body of law derived from judicial decisions, we note that the Third Court of Appeals has already held that the State is not a person at common law, and thus, the State is not subject to the procedural requirements of the TMLA. See Malouf v. State ex rel. Ellis, 461 S.W.3d 641, 647 (Tex. App.— Austin 2015, pet. denied). The court reasoned that the State is a sovereign, and at common law, the sovereign must be excluded from the word "person" absent some affirmative showing to the contrary. Id. at 646 ("Under the common law, there is a longstanding interpretive presumption that ‘person’ does not include the sovereign, which may be disregarded only upon some affirmative showing of statutory intent to the contrary.").

[3] Unlike the State, a county is not a sovereign entity. See Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019). However, a county can share in the State’s sovereign immunity. See County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). And more importantly for purposes of this case, our court has previously held that, like the State, a county is not a person at common law. See Harris County v. Dowlearn, 489 S.W.2d 140, 145 (Tex. App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.).

In Dowlearn, the county was found liable for personal injuries in a claim arising under the Tort Claims Act. Id. at 142. The county argued many issues on appeal, one of which was that the Tort Claims Act was unconstitutional because portions of it treated counties and cities differently, in violation of the Equal Protection Clause. Id. at 145. This court rejected that argument with the following explanation: "As to constitutionality, a municipality, county, or other public corporation or governmental agency created and controlled by a state is not a ‘person’ entitled, as against the state, to equal protection of the laws." Id. In arriving at that conclusion, this court relied on another judicial decision, citing Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), a school desegregation case that held "there is no rule that counties, as counties, must be treated alike; the Equal Protection Clause relates to equal protection of the laws ‘between persons as such rather than between areas.’ " Id. at 230, 84 S.Ct. 1226.

The Texas Supreme Court disapproved of Dowlearn in State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235 (Tex. 1992), but only to the extent that Dowlearn classified a defect as "special" when the defect was unlike an excavation or obstruction on a roadway. Id. at 238 n.3. To our knowledge, no court has ever expressed disapproval of this court’s holding in Dowlearn that a county was not a person.

The Pharmacies do not address Dowlearn in any of their briefs (including their reply briefs). Instead, they refer us to four cases in which courts have cited to the Code Construction Act in the same context as the TMLA. As we explain below, all of the cases are distinguishable.

The first of the four cases is Group v. Vicento, 164 S.W.3d 724 (Tex. App.—Houston [14th Dist.] 2005, pet. denied), where the issue involved the word "include," which is defined under the Code Construction Act, but not defined under the TMLA. Id. at 731. Our court properly considered the Code Construction Act when construing that word because, unlike "person," the word "include" is not a "legal term or word of art," and thus, the TMLA would not require that it be construed according to its common law meaning, to whatever extent that the common law meaning would have been different. See Tex. Civ. Prac. & Rem. Code § 74.001(b).

The second case is Mokkala v. Mead, 178 S.W.3d 66, 70-71 (Tex. App.—Houston [14th Dist.] 2005, pet. denied), in which this court cited the Code Construction Act for the unremarkable proposition that, when construing a statute, a court may consider the object that the legislature sought to obtain. Id. at 70-71. Like Group, this case is not instructive because it did not consider the common law meaning of person.

The Pharmacies cite next to Coming Attractions Bridal & Formal, Inc. v. Texas Health Resources, 595 S.W.3d 659 (Tex. 2020), a case that squarely addressed the...