Touchstone Communities, Inc., and Touchstone Strategies-Stone Oak2 LLC v. Dorothy M. Huttinger

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00432-CV
TOUCHSTONE COMMUNITIES, INC., and Touchstone Strategies-Stone Oak2 LLC,
Appellants
v.
Dorothy M. HUTTINGER,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CI24482
Honorable Aaron Haas, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: May 20, 2021
REVERSED AND REMANDED
Touchstone Communities, Inc. and Touchstone Strategies-Stone Oak2 LLC
(“Touchstone”) appeal the judgment dismissing Dorothy Huttinger’s healthcare liability suit,
arguing the trial court erred in dismissing the case without prejudice and in failing to award
Touchstone its costs and attorney’s fees. Because Huttinger failed to serve the expert report
required by law, we reverse the judgment and remand with instructions.
BACKGROUND
Huttinger resided in an assisted living and rehabilitation facility owned and operated by
Touchstone. In November 2019, she filed an original petition pursuant to Chapter 74 of the Texas
04-20-00432-CV
Civil Practice and Remedies Code (the Texas Medical Liability Act), alleging she received medical
care and treatment at the facility that fell below the generally accepted standard of care and that
Touchstone retaliated against her after her daughter filed complaints regarding her care. She
alleged Touchstone’s conduct was negligent and violated the Resident’s Bill of Rights. Touchstone
filed an original answer on December 12, 2019.
Huttinger was required to serve an expert report on Touchstone not later than April 10,
2020, the 120th day after Touchstone filed its answer. See TEX CIV. PRAC. & REM. CODE
§ 74.351(a). 1 Huttinger did not serve an expert report, and on June 4, 2020, she filed a motion for
nonsuit, asking the trial court to dismiss the suit. Touchstone responded on June 10, 2020, by filing
a motion to dismiss with prejudice and praying for an award of costs and attorney’s fees. See id.
§ 74.351(b).
The trial court signed an order on June 15, 2020, granting Huttinger’s motion for nonsuit
and ordering “Plaintiffs [sic] cases and causes of action against all Defendants be dismissed.” That
order was not a final judgment because it did not follow a conventional trial on the merits, did not
unequivocally express an intent for the order to be a final and appealable order, and did not dispose
of Touchstone’s pending claim for fees and costs under the statute. See Crites v. Collins, 284
S.W.3d 839, 841 (Tex. 2009). The judgment became final on August 7, 2020, when the trial court
signed an order denying Touchstone’s motion. Touchstone timely appealed, arguing the trial court
erred by failing to dismiss the action with prejudice and by failing to award Touchstone its
attorney’s fees and costs. Huttinger did not file a brief.
1
Section 74.351(a) provides the parties may, by written agreement, extend the time for serving the report. TEX. CIV.
PRAC. & REM. CODE § 74.351(b). No such agreement was reached in this case.
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04-20-00432-CV
DISCUSSION
Section 74.351(b) of the Texas Medical Liability Act requires a trial court to dismiss a
claimant’s healthcare liability claim with prejudice and to award the defendant physician or health
care provider the reasonable attorney’s fees and costs it has incurred if a claimant fails to serve an
expert report within 120 days after the defendant files an answer. TEX. CIV. PRAC. & REM. CODE
§ 74.351(b); Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 360-61 (Tex.
2019); Garcia v. Gomez, 319 S.W.3d 638, 642-43 (Tex. 2010).
At a hearing preceding the final order, Touchstone’s counsel stated without objection that
Touchstone had incurred $12,300 in reasonable attorney’s fees and briefly listed some of the legal
work that had been done in the case. Although cursory and not conclusive, this was some evidence
to place the issue of fees before the court. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
578 S.W.3d 469, 496-98 (Tex. 2019); Garcia, 319 S.W.3d at 642-43; see also Banda v. Garcia,
955 S.W.2d 270, 272 (Tex. 1997) (holding counsel’s unsworn statements may be considered
evidence when opponent fails to object under circumstances in which opponent knows or should
know an objection is necessary).
Because the trial court had no discretion to dismiss Huttinger’s claims without prejudice
or to deny Touchstone’s motion for fees and costs, we reverse the judgment. We remand the case
to the trial court with instructions to award Touchstone the reasonable attorney’s fees and costs it
incurred and to dismiss Huttinger’s claims with prejudice. See PM Mgmt.-Windcrest NC, LLC v.
Sanchez, 256 S.W.3d 396, 397-98 (Tex. App.—San Antonio 2008, no pet.). 2
Luz Elena D. Chapa, Justice
2
Touchstone also asks this court to address whether the Texas Supreme Court’s Orders Regarding the COVID-19
State of Disaster authorized the trial court to modify, suspend, or amend the deadline for serving an expert report.
However, Huttinger did not ask the trial court to extend the deadline to file an expert report in this case, and the trial
court did not grant such relief. Therefore, the issue is not before us.
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