David S. Lopez and Richard Humphrey v. Francisco Sosa ( 2023 )

Affirmed and Opinion Filed June 9, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00295-CV
DAVID S. LOPEZ AND RICHARD HUMPHREY, Appellants
V.
FRANCISCO SOSA, Appellee
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-19-02681-E
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Molberg
Appellant David Lopez, in his official capacity as Chief Operating Officer of
Parkland Health & Hospital System, and appellant Richard Humphrey, in his official
capacity as Chief Financial Officer of Parkland, appeal the trial court’s denial of
their second amended pleas to the jurisdiction, no evidence motions for summary
judgment, and Texas Medical Liability Act motion to dismiss. Because we conclude
the trial court did not err in denying the pleas and motions, we affirm in this
memorandum opinion. See TEX. R. APP. P. 47.4.
I. Background
In 2018, appellee Francisco Sosa was taken to Parkland’s emergency
department following a car accident. Sosa was billed $53,233.81 for the treatment
he received at Parkland and his insurer paid $31,877.03 of the invoice. In March
2019, Parkland filed a hospital lien pursuant to Chapter 55 of the Texas Property
Code “upon any and all rights of action, suits, claims, counterclaims and demands
of [Sosa] on account of personal injuries received.” The lien listed the “name of
party or parties alleged to be liable for damages arising from the injury” as unknown.
An affidavit attached to the lien stated the unpaid amount was $6,323.15.
Sosa originally brought suit in May 2019 against Parkland and its Chief
Operating Officer, Lopez, for claims arising out of his visit to Parkland’s emergency
department. Sosa alleged Lopez authorized Med-Data, Inc. to act as Parkland’s
agent and authorized Parkland employees to provide information to Med-Data “for
the purpose of filing hospital liens[.]” Sosa alleged a $6,323.15 hospital lien was
filed against him by Parkland on or about March 4, 2019. Sosa argued Lopez “acted
without legal or statutory authority by filing said lien,” as it was not in compliance
with Chapter 55 of the property code in several respects, and accordingly, he sought
a declaratory judgment that Parkland’s hospital lien was invalid.
Parkland and Lopez filed pleas to the jurisdiction and motions to dismiss for
lack of subject matter jurisdiction, which were denied by the trial court. They
appealed to this Court, and we reversed as to Parkland and dismissed Sosa’s claims
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against the hospital but affirmed the denial of Lopez’s plea to the jurisdiction,
finding Sosa properly pleaded ultra vires claims against Lopez. See Dallas Cnty.
Hosp. Dist. v. Sosa (Sosa I), No. 05-19-01164-CV, 2020 WL 4581666, at *6 (Tex.
App.—Dallas Aug. 10, 2020, pet. denied) (mem. op.).
On August 31, 2021, Sosa filed a second amended petition. He reiterated his
claims against Lopez and made the same claims for the first time against Humphrey,
Parkland’s Chief Financial Officer. Sosa alleged Humphrey and Lopez authorized
Med-Data to act as Parkland’s agent “for purposes of collecting additional monies
for services provided to” Sosa and they authorized Parkland employees to provide
Sosa’s patient account information to Med-Data “for the purpose of the filing of a
hospital lien, which was performed on or about March 12, 2019.” Sosa alleged
Humphrey and Lopez, each in his official capacity, without legal or statutory
authority, “authorized or permitted a hospital lien to be filed as Plaintiff was an
insured patient;” “authorized or permitted the transfer of Plaintiff s account to
MedData for the purpose of filing a hospital lien on behalf of Parkland,
approximately six months after Parkland received payment from Plaintiff’s health
insurer, Blue Cross Blue Shield;” “authorized or permitted the filing a hospital lien
despite Plaintiff not having been admitted into Parkland;” “authorized or permitted
a hospital lien in the sum of $53,233.81, to be filed, said lien amount greatly
exceeded the usual and customary charges for the services Plaintiff received in
contravention to the Texas Hospital Lien Statute;” “authorized or permitted the
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acceptance of the amount paid by Plaintiff’s health insurer, $31,877.03, which
exceeded the regular and reasonable rate customarily charged for services rendered
to Plaintiff as permitted under the Texas Hospital Lien Statute;” and “the amount
received by Parkland on Plaintiff’s behalf, $31,877.03, was more than 50% of
Plaintiff‘s third-party settlement of $57,485.98.” Sosa sought a declaration that the
hospital lien authorized by Humphrey and Lopez was invalid pursuant to §§ 55.002
and 55.004 of the property code.
On November 9, 2021, Lopez filed a second amended plea to the jurisdiction,
arguing among other things that, following Lopez’s deposition, Sosa could not
maintain a viable ultra vires claim against him. Humphrey filed a second amended
plea to the jurisdiction, arguing that the discretionary decisions alleged by Sosa did
not amount to an ultra vires claim. Lopez and Humphrey also, in the alternative,
presented their jurisdictional challenges through no evidence motions for summary
judgment. Additionally, Lopez and Humphrey jointly filed a motion to dismiss
pursuant to § 74.351(a) of the civil practice and remedies code, arguing Sosa’s suit
alleged health care liability claims requiring an expert report, which Sosa failed to
serve on them. The trial court denied the two pleas to the jurisdiction, the no
evidence motions for summary judgment, and the Chapter 74 motion to dismiss.
This appeal followed.
II. Discussion
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Lopez argues he had no role in the actions challenged by Sosa, and that his
deposition, given subsequent to our prior opinion in this case, confirms he did not
have authority over the actions that form the basis of Sosa’s claims. Lopez and
Humphrey also argue Sosa’s allegations cannot support an ultra vires claim because
they involve the exercise of discretion. They argue the filing of a hospital lien,
determining how a patient account is handled, determining whether a patient was
admitted to the hospital, and setting hospital charges are all discretionary actions.
They further argue Sosa did not allege an ultra vires claim because it was a “practical
impossibility” for a lien to have been filed in violation of Chapter 55 in the manner
alleged by Sosa. Alternatively, Lopez and Humphrey argue the trial court erred in
denying their motions for summary judgment because Sosa presented no evidence
establishing subject matter jurisdiction. Finally, Lopez and Humphrey argue the
trial court erred by denying their motion to dismiss under the Texas Medical
Liability Act.
A. Pleas to the jurisdiction and no evidence
summary judgment motions
1. Applicable law
Generally, immunity from suit implicates courts’ subject matter jurisdiction
and is therefore properly asserted in a plea to the jurisdiction. Houston Belt &
Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). Because
subject matter jurisdiction is a question of law, we review de novo a trial court’s
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ruling on a plea to the jurisdiction. Klumb v. Houston Mun. Emps. Pension Sys., 458
S.W.3d 1, 8 (Tex. 2015). Jurisdiction may also be challenged by a no evidence
motion for summary judgment. See Town of Shady Shores v. Swanson, 590 S.W.3d
544, 552 (Tex. 2019). “After adequate time for discovery, a party without presenting
summary judgment evidence may move for summary judgment on the ground that
there is no evidence of one or more essential elements of a claim or defense on which
an adverse party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i).
The motion should be granted unless the nonmovant produces evidence raising a
genuine issue of material fact. Id. We view the jurisdictional evidence in the light
most favorable to the nonmovant. Swanson, 590 S.W.3d at 552. The plaintiff has
the burden to demonstrate the trial court’s jurisdiction. Heckman v. Williamson
Cnty., 369 S.W.3d 137, 150 (Tex. 2012).
Sovereign immunity protects the state and its agencies from suit and liability,
while governmental immunity provides a similar protection to the political
subdivisions of the state. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54,
57–58 (Tex. 2011). This immunity deprives a trial court of subject matter
jurisdiction for suits where certain governmental units have been sued, unless the
state has consented to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 224 (Tex. 2004). Immunity does not, however, bar an ultra vires suit, which is
brought against a government officer for acting outside his or her authority or for
failure to perform a purely ministerial act. Houston Belt, 487 S.W.3d at 161.
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Governmental immunity does not protect every act by a government officer that
requires some exercise of judgment or discretion; an officer with some discretion
may nevertheless act ultra vires “if he exceeds the bounds of his granted authority
or if his acts conflict with the law itself.” Id. at 158. This exception to governmental
immunity is justified because acts made without legal authority should not be
considered acts of the state at all. Hall v. McRaven, 508 S.W.3d 232, 238 (Tex.
2017). Thus, ultra vires suits properly understood do not seek to control the state
but “‘to reassert the control of the state’ over one of its agents.” Id. (quoting City of
El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)).
2. Analysis
Lopez first argues that his deposition testimony made clear he had no
involvement with or authority over the actions forming the basis of Sosa’s claims.
In pertinent part, Lopez testified that, though he was no longer employed at Parkland,
his former responsibilities as Chief Operating Officer were “very broad” and
included overseeing the management of departments such as radiology, pharmacy,
laboratory, respiratory care, facilities, housekeeping, and nutrition services, but did
not include finance and nursing. Lopez said the finance department was in charge
of setting prices for services. Lopez did not know why Parkland switched collection
services from Meridian Services to MedData, and he was unfamiliar with the
relationship between Parkland and MedData. He said Humphrey—as Chief
Financial Officer—or “his designee responsible” would be the person to speak with
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regarding how Parkland’s patient billing files are transferred to MedData. Thus,
Lopez argues, he was a “nominal, apex representative” who had nothing to do with
the action and an ultra vires action could not be brought against him. See Hall, 508
S.W.3d at 240. Sosa responds that this question was resolved in the appeal of the
denial of Lopez’s first plea to the jurisdiction.
We agree with Sosa. Previously, we reviewed this claim when the trial court
had before it Lopez’s affidavit, in which he stated his responsibilities included
managerial oversight of the operations division but did not include “the setting of
the amount of charges for the various treatments and services offered by Parkland or
with the billing of Parkland’s charges.” He then stated he had no role in approving
Parkland’s charges for its services or in filing hospital liens, and had no contact with
Parkland’s “vendors responsible for the investigation and filing of hospital liens” or
any role in the business relationship between Parkland and the relevant vendors.
Lopez also stated he had no role specifically as to Sosa’s treatment, charges, billing,
or hospital lien. On those facts, we acknowledged Lopez “denied any role in the
instant lien and in general determining amounts of charges or filing or authorizing
the filing of hospital liens” but nevertheless observed that “nowhere in his affidavit
or job description does Lopez deny the legal authority to file or authorize the filing
of hospital liens, to determine charges for services and treatments provided by
Parkland, to cause other employees to confirm that charges for services are
‘reasonable and regular,’ or direct employees to file, release or reform a lien.” Sosa
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I, 2020 WL 4581666, at *5 (emphasis added). We concluded Sosa properly pleaded
ultra vires claims against Lopez. Id. at *6.
Lopez’s deposition testimony effectively reiterated what he previously stated
in his affidavit. He testified that his responsibilities were broad but did not include
finance, and did not include overseeing the finance department. Thus, we again must
conclude that, although Lopez disclaimed any responsibility for setting prices,
billing patients, or filing hospital liens—and denied any role in the specific facts
alleged by Sosa—Lopez did not deny the legal authority to file or authorize the filing
of hospital liens, to determine charges for services and treatments provided by
Parkland, to cause other employees to confirm that charges for services are
“reasonable and regular,” or direct employees to file, release or reform a lien. See
id. at *5–6. We conclude Sosa properly pleaded ultra vires claims against Lopez.
Second, Lopez and Humphrey argue the actions alleged by Sosa were
discretionary in nature and thus could not be the basis for an ultra vires suit. To
reiterate, Sosa seeks a declaratory judgment against Lopez and Humphrey,
specifically seeking a declaration that Parkland’s hospital lien is invalid under
§ 55.002 of the property code because he was not admitted to the hospital, and under
§ 55.004 because Parkland has received an amount for Sosa’s treatment that
exceeded the reasonable and regular rate for the services provided. Sosa generally
alleges Lopez and Humphrey authorized or permitted the lien to be filed against
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him.1 Lopez and Humphrey argue that the allegation they erred in authorizing the
lien claiming amounts that were not reasonable and regular implicates only a
“discretionary determination.”
We reject Lopez and Humphrey’s contention. As the supreme court observed
in Houston Belt, “governmental immunity bars suits complaining of an exercise of
absolute discretion but not suits complaining of either an officer’s failure to perform
a ministerial act or an officer’s exercise of judgment or limited discretion without
reference to or in conflict with the constraints of the law authorizing the official to
act.” 487 S.W.3d at 163. Here, Sosa’s allegations complain of Lopez’s and
Humphrey’s exercise of limited discretion in authorizing or permitting the hospital
lien to be filed, arguing their actions conflicted with the constraints of the law
authorizing them to act.
Chapter 55 of the property code grants a lien right to a hospital that treats an
individual for injuries caused by an accident attributed to the negligence of another
person. See TEX. PROP. CODE § 55.002(a). The property code limits a hospital’s
1
Sosa alleged Lopez and Humphrey, without legal authority, (1) authorized or permitted a hospital lien
to be filed against Sosa, who was an insured patient; (2) authorized or permitted the transfer of Sosa’s
account to MedData for the purpose of filing a hospital lien on behalf of Parkland, about six months after
Parkland received payment from Sosa’s health insurer; (3) authorized or permitted the filing a hospital lien
despite Sosa not having been admitted to Parkland; (4) authorized or permitted a hospital lien to be filed in
the sum of $53,233.81, which greatly exceeded the usual and customary charges for the services Sosa
received, in contravention to the Texas Hospital Lien Statute; (5) authorized or permitted the acceptance of
the amount paid by Sosa’s health insurer, $31,877.03, which exceeded the regular and reasonable rate
customarily charged for services rendered to Sosa as permitted under the Texas Hospital Lien Statute; and
(6) the amount received by Parkland on Sosa’s behalf, $31,877.03, was more than 50% of Sosa’s third-
party settlement of $57,485.98.
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authority in filing such a lien in several ways. As pertinent here, under § 55.002(a),
“For the lien to attach, the individual must be admitted to a hospital not later than 72
hours after the accident.” TEX. PROP. CODE § 55.002(a). Additionally, a hospital
lien under § 55.002(a) does not cover “charges for other services that exceed a
reasonable and regular rate for the services[.]” Id. § 55.004(d)(1).
In granting Parkland the authority to file a lien while constraining its authority
to do so in particular ways, Chapter 55 of the property code is similar to the statutory
schemes at issue in Henrich and Houston Belt. In Heinrich, the widow of an El Paso
police officer sued, among others, the officers’ pension fund’s board of trustees and
the mayor after the board reduced her monthly survivor benefits when her son
reached a certain age. Heinrich, 284 S.W.3d at 369. She sought declaratory relief,
alleging the defendants violated the statute governing the pension fund by reducing
her benefits retroactively. Id. The supreme court concluded that “suits to require
state officials to comply with statutory or constitutional provisions are not prohibited
by sovereign immunity” while acknowledging ultra vires suits cannot complain of
exercises of discretion. Id. at 372. Instead, they must allege an officer acted without
legal authority or failed to perform a purely ministerial act. Id. The court stated that
the board, under the pertinent statute, had no discretion to retroactively lower
pensions. Id. at 379. The widow’s suit against the board members and the mayor in
their official capacities was therefore permitted to go forward. Id. at 380.
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The court in Houston Belt summarized Heinrich as follows: “Heinrich alleged
that the officers, making the type of determination which they had authority to make,
made that determination in a way the law did not allow.” 487 S.W.3d at 162.
Similarly, in Houston Belt, the City of Houston’s Director of Public Works and
Engineering was given authority, by city ordinance, to administer a “pay-as-you-go”
drainage fee system. Id. at 158. The ordinance defined certain terms, such as
“benefitted property” and “impervious surface.” Id. at 159. After receiving notice
of proposed charges under the ordinance, Houston Belt eventually sued the city and
the director, alleging the director “had improperly proposed charges on properties
that were not benefitted and on surfaces that were not impervious.” Id. The supreme
court concluded that nothing in the ordinance suggested the director had absolute
discretion to make determinations about what was a “benefitted property” or an
“impervious surface.” Id. at 167–68. Accordingly, Houston Belt alleged viable ultra
vires claims against the director. Id. at 169.
It is true, as Lopez and Humphrey argue, that not every legal mistake is an
ultra vires act. See Hall, 508 S.W.3d at 241. In Hall, the university system regent
plaintiff, Hall, sought a declaration that the chancellor defendant, McRaven, acted
ultra vires in refusing to provide him unredacted student records. Id. at 237. The
supreme court observed that an ultra vires suit could only compel McRaven to
follow his governing authority, not change it. Id. at 240. The court concluded Hall
failed to allege a proper ultra vires claim because an official making an error while
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staying within his or her authority is not an ultra vires act. Id. at 242–43. In
interpreting and applying federal privacy law, even if erroneously, McRaven was
not applying the law authorizing him to act, he was applying a collateral law; thus,
he was not acting without legal authority in erroneously applying a collateral
law. Id.
The claim in Hall differed from the one in Houston Belt in two ways. First,
in Houston Belt, the director’s alleged misinterpretation was of the requirements of
the law authorizing him to act, so he allegedly exceeded the scope of what the city
permitted him to do. Id. at 241. On the other hand, McRaven’s interpretation did
not relate to his authority but to federal privacy law, which was merely collateral to
McRaven’s authority. Id. at 242. The court concluded that, in order to act without
legal authority in interpreting and applying the privacy law, McRaven must have
exercised discretion without reference to or in conflict with the constraints of the law
authorizing him to act. Id. Second, in Houston Belt, the director’s determination
was subject to explicit constraints, while McRaven’s only duty was to determine
whether a Regent may review information protected by privacy laws. Id. In other
words, McRaven’s discretion to interpret collateral federal privacy law was
“absolute” under the Houston Belt framework. Id. at 243.
The same cannot be said here. Instead, as in Houston Belt, the law authorizing
Lopez and Humphrey to act also constrained them from acting in particular ways; as
in Heinrich, Sosa alleged that the officers, taking the type of action they had the
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authority to take, did so in a way the law did not allow. Section 55.004 states that a
hospital lien may include “the amount of a physician’s reasonable and necessary
charges for emergency hospital care services provided to the injured individual” but
does not include charges “for other services that exceed a reasonable and regular rate
for the services.” See TEX. PROP. CODE § 55.004(c), (d)(1). Thus, Sosa’s allegation
that Lopez and Humphrey erred in authorizing a hospital lien to be filed based on
rates that were not the reasonable and regular rates customarily charged is an
allegation that Lopez and Humphrey acted in conflict with the constraints of the law
authorizing them to act.2 See Sosa I, 2020 WL 4581666, at *7. Accordingly, we
conclude the trial court did not err in denying Lopez’s and Humphrey’s amended
pleas to the jurisdiction.
For the same reasons, we conclude the trial court did not err in denying Lopez
and Humphrey’s no evidence motions for summary judgment. The evidence before
the trial court showed that Lopez had broad authority as Chief Operating Officer,
and Humphrey was Chief Financial Officer at Parkland. Nothing demonstrates
Lopez had no legal authority relating to hospital liens, and nothing before us
demonstrates that Humphrey or someone else had exclusive legal authority relating
to the filing of hospital liens. See id. Viewing the evidence in the light most
2
Because we conclude these allegations support an ultra vires claim, we do not need to address whether
the allegation that Lopez and Humphrey erred in authorizing the lien for treatment provided in the
emergency room or Sosa’s other allegations support an ultra vires claim. See Sosa I, 2020 WL 4581666,
at *7 n.9; TEX. R. APP. P. 47.1.
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favorable to Sosa, we conclude fact questions exist about which officer may have
had legal authority relating to the authorizing and filing of hospital liens and Sosa’s
related allegations. Accordingly, we conclude the trial court did not err by denying
Lopez’s and Humphrey’s no evidence summary judgment motions challenging the
trial court’s subject matter jurisdiction.
B. TMLA motion to dismiss
In their motion to dismiss pursuant to the Texas Medical Liability Act, Lopez
and Humphrey argued Sosa’s suit should be dismissed for failure to file an expert
report under § 74.351(a) of the civil practice and remedies code. We review a trial
court’s decision on a § 74.351 motion to dismiss for an abuse of discretion. Bakhtari
v. Estate of Dumas, 317 S.W.3d 486, 490 (Tex. App.—Dallas 2010, no pet.).
A claimant must, in a health care liability claim, serve on the defendant or its
attorney, not later than the 120th day after the defendant’s original answer is filed,
one or more expert reports, with a curriculum vitae for each expert listed in the report
for each physician or health care provider against whom a liability claim is asserted.
TEX. CIV. PRAC. & REM. CODE § 74.351(a). A claimant is a person, including a
decedent’s estate, seeking recovery of damages in a health care liability claim. Id. §
74.001(a)(2). 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
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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). The supreme court has divided this
statutory definition into 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).
Sosa did not serve on Lopez and Humphrey an expert report relating to his
claims, so the question here is whether he was required to do so under § 74.351(a).
Sosa argues he was not required to file such a report because Lopez and Humphrey
are not health care providers; Sosa does not seek damages and thus is not a
“claimant” under Chapter 74; Sosa does not claim he suffered an injury; and his
claim does not implicate Lopez and Humphrey’s conduct during the course of Sosa’s
care, treatment, or confinement given that the hospital lien was filed about ten
months after Sosa’s emergency department visit.
Because we conclude on the record before us that Sosa is not a “claimant”
within the meaning of the TMLA, we conclude the trial court did not err in denying
the Chapter 74 motion to dismiss. As stated above, claimant “means a person,
including a decedent’s estate, seeking or who has sought recovery of damages in a
health care liability claim.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2) (emphasis
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added). “Economic damages” and “noneconomic damages” are both defined by the
act to have the meaning assigned by § 41.001, see id. § 74.001(a)(6), (a)(20), which
defines economic damages as “compensatory damages intended to compensate a
claimant for actual economic or pecuniary loss; the term does not include exemplary
damages or noneconomic damages,” and noneconomic damages as “damages
awarded for the purpose of compensating a claimant for physical pain and suffering,
mental or emotional pain or anguish, loss of consortium, disfigurement, physical
impairment, loss of companionship and society, inconvenience, loss of enjoyment
of life, injury to reputation, and all other nonpecuniary losses of any kind other than
exemplary damages[,]” see id. § 41.001(4), (12).
Here, Sosa seeks declaratory relief; he does not seek to recover damages.
Consequently, he is not a claimant within the meaning of the medical liability act,
and he was not required to file the expert report required by § 74.351(a).
See McAllen Hosps., L.P. v. Gomez, No. 13-12-00421-CV, 2013 WL 784688, at *6
(Tex. App.—Corpus Christi–Edinburg Feb. 28, 2013, no pet.) (mem. op.)
(concluding plaintiff, with respect to his claim seeking a declaration that a hospital
lien was invalid, was not a “claimant” under TMLA because he sought “declaratory
relief, not an award of damages”). Notably, this is not a case in which the plaintiff
seeks damages and also seeks declaratory relief, which we previously concluded
compels a different result than the one we reach today. See Tinnard v. Dallas Cnty.
Hosp. Dist., No. 05-13-01161-CV, 2015 WL 273123, at *5 (Tex. App.—Dallas Jan.
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22, 2015, no pet.) (mem. op.) (when plaintiff sued heath care providers under the
tort claims act seeking actual, statutory, and punitive damages, he was a claimant
seeking damages under the TMLA, and the “fact that [the plaintiff] also filed a claim
for declaratory relief does not alter the underlying nature of his lawsuit, and his claim
cannot be divided into both a health care liability claim and another type of claim”).
Sosa seeks only a judicial declaration under Chapter 37 that the hospital lien
allegedly authorized by Lopez and Humphrey is invalid, and he seeks attorney’s fees
under § 37.009—he does not seek to recover damages. E.g., CBIF Ltd. P’ship v.
TGI Friday’s Inc., No. 05-15-00157-CV, 2017 WL 1455407, at *15 (Tex. App.—
Dallas Apr. 21, 2017, pet. denied) (mem. op.) (“attorney’s fees are not ordinarily
considered as an element of damages”).
Lopez and Humphrey argue in their reply brief that supreme court precedent
forecloses the foregoing; they cite Coming Attractions Bridal & Formal, Inc. v. Tex.
Health Res., 595 S.W.3d 659, 666–67 (Tex. 2020). In that case, the plaintiff argued
that because it alleged economic damages and not physical injury, the TMLA did
not apply. Id. The supreme court rejected this argument, noting it had previously
held “that claims alleging the negligent provision of health care fall within the Act
when the alleged damages stem from health-care-related claims, regardless of the
type of injury alleged.” Id. (citing CHRISTUS Health Gulf Coast v. Carswell, 505
S.W.3d 528, 537 (Tex. 2016)). The act does not qualify the type of “injury” to which
it applies, and it does not limit the definition of injury to bodily injury. Id. We do
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not think this discussion of the meaning of “injury” within the definition of a “health
care liability claim” affects our analysis of whether, under the facts of this case, Sosa
is a “claimant,” which turns not on the type of damages alleged but on whether any
damages were alleged. Because Sosa does not seek damages, he cannot be a
“claimant” under the TMLA. We conclude the trial court did not err in denying
Lopez and Humphrey’s Chapter 74 motion to dismiss.
III. Conclusion
Having overruled Lopez and Humphrey’s three issues on appeal, we affirm
the judgment of the trial court.
/Ken Molberg/
220295f.p05 KEN MOLBERG
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAVID S. LOPEZ AND RICHARD On Appeal from the County Court at
HUMPHREY, Appellants Law No. 5, Dallas County, Texas
Trial Court Cause No. CC-19-02681-
No. 05-22-00295-CV V. E.
Opinion delivered by Justice
FRANCISCO SOSA, Appellee Molberg. Justices Partida-Kipness
and Carlyle participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee FRANCISCO SOSA recover his costs of this
appeal from appellants DAVID S. LOPEZ AND RICHARD HUMPHREY.
Judgment entered this 9th day of June 2023.
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