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## NO. 12

- 21

- 00150

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

SOUTH PLACE SNF, LP , APPELLANT

V.

JOHN HUDSON , APPELLEE §

§

§ APPEAL FROM THE 173RD

JUDICIAL DISTRICT COURT

HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION South Place SNF, L.P. appeals the trial court’s denial of its second motion to dismiss John Hudson’s suit against it. In five issues, South Place contends that the trial c ourt should have dismissed Hudson’s suit because it is a health care liability claim (HCLC) and Hudson
failed to file the required expert report within 120 days of filing its original answer. We affirm.

B A CKGROUND South Place is a skilled nursing and reh abilitation facility. In May 2018, Hudson met with Ashley Koonce, who was his ex

- girlfriend and a South Place emp loyee, at the facility ’ s dining

room. The purpose of Hudson ’ s visit was to arrange the transfe r of their daughter. When Hudson attempted to l eave the dining room, he slipped and fell in a puddle of liquid accumulated
on the floor. In his original petiti on, Hudson alleged that South Place violated its duties as a premises owner in the following resp ects, causing his injuries:

• creating a dang erous condition on its premises, • failing to reasonably inspect its premises with the unreasonable dangerous con dit ion it created, • failing to remove the unreasonably dangerous condition and trip hazard create d on its premises, and • failing to warn him of the unreasonably dangerous condition and trip hazard created on it premises.2 Six months after it filed an ori gin al answer, South Place filed a motion to dismiss
Hudson ’ s suit, alleging that his claim is an HC LC and that the claim should be dismissed
be cause he failed to timely serve an expert report as required by the Texas Medical Liability Act (TMLA). 1 In its mot ion to dismiss, South Place contended as follows:

Because nursing care is provided to residents in the dining room, [it] had an obligation to meet certain sanitary standards and keep the dining free from foreign substances which could cause unnecessary fa ll[s] or safety risks to residents. Accordingly, the safety standards upon which plaintiff's cla im is based are substantially related to the provision of healthcare by South Place. Plaintiff's claim is, therefore, a healthcare liability claim subject to th e expert report requirements of Chapter 74.

After a hearing and considering the pleadings and af fidavits filed by each of the parties,
the trial court denied South Place ’ s motion to dismiss. On appeal, this Court examined the factors enumerated by the Te xas Supreme Court in Ross v. St. Luke’s Episcopal Hosp. , 462 S.W.3d 496 (Tex. 2015), and determin ed that Hudson’s claim is not a HCLC and is based in premises liability. 2 South Place filed a petition for review with the Texas Supreme Court, which
was d eni ed. On remand, the parties continued to engage in discovery. South Place urged that it did

not create , and had no actual or constructive kn owledge of , the alleged dangerous condition on
the floor. In an attempt to combat that assertion, Hudson designa ted Stacy Donnelly as an expert and provided her report. In her report, Donnelly, a nurse, detaile d how South Place violated
standards of medi cal care and safety in connection with Hudson’s claim, including those related to nursing care, infection control , c atheter use and care, and maintenance of a safe environment for facility residents. South Place then filed a second motion to dismiss, alle ging that Donnelly’s report characterized Hudson’s claim as a HCLC and that Hudson’s failure to serve the report wit hin the 120

- day window necessitated dismissal. Hudson withdrew Donnelly’s report and

exper t witness designation. Following a hearing, the trial court denied the motion to dismiss. This interlocutory appeal followed. 3

1 See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 74 .351(a), (b) (W est 2019 ).

2 S. Place SNF, L.P. v. Hudson , 606 S.W.3d 829, 833

- 35 (Tex. App.

— Tyler 2020, pet. denied).

3 See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 51.014(a)(9) (West Supp. 2021 ).3 M OTION TO D ISMISS In its five is sues, South Place argues that the trial court should have granted its motion to
dismiss . Specifically, it urges that Donnelly’s report prov es that Hudson’s claim is a HCLC and not a premises liability claim . It further posits that even if Hudson’s cla im is not pleaded like a HCLC, the mere fact that it could be, makes an expert repo rt necessary. Hudson contends, and South Place disputes in its second issue , that our prior opinion is binding and we cannot
reconsider whether Hudson’s claim is a HCLC und er “the law of the case.” We agree with
Hudson.
The Law of the Case
Under the law

- of

- the

- case doctrine, a decision rendered in a former appea l is generally binding in a later appeal of the same case. Paradigm Oil, Inc. v. Retamco Operating, Inc. , 372
S. W.3d 177, 182 (Tex. 2012) (citing Briscoe v. Goodmark Corp. , 102 S.W.3d 714, 716 (Te x. 2003)). The Texas Supreme Court has described the doctr ine as follows:

The “law of the case” doctrine is defined as that principle under which questions of law decided

on a ppeal to a court of last resort will govern the case throughout its subsequent st ages. By narrowing the issues in successive stages of the litigation, the law of the case doctrine is intended to achieve uniformity of decision as well as judicial econo my an d efficiency. The doctrine is based on public policy and is aimed at putting an e nd to litigation.

Briscoe , 102 S.W.3d at 716 (quoting Hu dson v. Wakefield , 711 S.W.2d 628, 630 (Tex. 1986))

. The doctrine may apply even when the appeal does not reach the co urt of last resort. See City of
Houston v. Precast Structures, Inc. , 60 S.W.3d 331, 338 (Tex. App.

— Houston [14th Dist.] 2001, pet. denie d ) ( holding that when losing party accepts remand instead of furthering appeal, court of appeals decision becomes law of th e case); Paradigm Oil , 372 S.W.3d at 182 (stating that decision by c ourt of appeals becomes law of case in trial court and court of a ppea ls even when petition for review denied by higher court ).
The doctrine is not an absolute bar to reconsideration of th e same issue in a second appeal. Briscoe , 102 S.W.3d at 716. Rather, the doctrine is flexible and provides courts of appeals with di scre tion to reconsider an issue depending on the particular circumstances surrounding the case. Id

. ; Shiloh Treatmen t Ctr., Inc. v. Ward , 608 S.W.3d 337, 341 (Tex. App.

— Houston [1st Dist.] 202 0, pet. denied). One exception to the doctrine is where an

app ella te court ’ s original decision is clearly erroneous, in which case the original decision is not4 binding in a subseq uent appe al. Briscoe , 102 S.W.3d at 716; Entergy Corp. v. Jenkins , 469
S.W.3d 330, 337 (Tex. App.

— Houston [1st Dist.] 2015, pet. denied)

. In addition, the doctrine does not necessarily apply when either the issues or the facts presented in successive app eals are

no t substantially the same as those involved in the first appeal. Jenk ins , 469 S.W.3d at 337; see Hoagland v. Butcher , 474 S.W.3d 802 , 809

– 10 (Tex. App.

— Houston [14th Dist.] 2014, no pet.) (“[U]nless the facts have sufficiently changed, our holdi ngs in the p revious appeal regarding personal jurisdiction are the law of this c ase.”) (citing Hudson , 711 S.W.2d at 630). Analysis On app eal, South Place maintains that Hudson’s claim is a HCLC and that we are not bound by our prior opinion

. Whether a c laim is a he alth care liability claim under the TMLA is a question of law reviewed de novo. Baylor Scott and White, Hillcrest Med. Ctr. v. Wee ms , 575 S.W.3d 357, 363 (Tex. 2019). To qualify as a HCLC , three elements must be met: (1) a physician or health care provider must be a defendant; (2) the claim at issue must concern

trea tment, lack of treatment, or a departure from accepted standard s of medical care, or health care, or safety or professional or administrative services directly related to health ca re; and (3)
th e defendant ’ s act or omission complained of must proximately c ause the injury to the claimant. Psychiatric Sols., Inc. v. Pa lit , 414 S.W.3d 724, 725

– 26 (Tex. 2013); see T EX

. C IV

. P RAC

. &
R EM

. C ODE A NN

. § 74.001(a)(13) (West Supp. 2021 ) (defi ning “health ca re liability claim”). In 2019, South Place moved to dismiss Hudson ’s suit, arguing that Hudson’s claim was actually a HCLC. Th e trial court denied the motion. This Court affirmed, holding that “Hudson’s claim is not a HCLC, but rather one based on premi ses liability.” S. Place SNF, L.P.
v. Hudson , 606 S.W.3d 829, 835 (Tex. App.

— Tyler 2020, pet. denied). When the Texas Supr eme Court denied South Place’s petition for review, our holding became the law of the case
for the trial court and th is Court. See Paradigm Oil , 372 S.W.3d at 182. We recognize that there is some flexibility in whether to rely on the law of the case
do ctri ne. However, for two reasons, we conclude that this is not a circumstance that would support relitigating a deci ded issue. Fir st, the underlying facts and issues are remarkably the same as when we issued our first opinion. The key difference now bei ng t hat the parties do not dispute that the substance on the floor was urine from a patient’s catheter bag. However, we previously noted that whether the substance was urine would not change our analysis. S. Place , 606 S.W.3d at 834 n.3. As a result, ou r an alysis of the Ross factors would not change

. In fact,5 the opinion applies the Ross factors under the assumption that the substa nce on the floor was
urine that leak ed from a patient’s catheter bag. See id. at 834

- 35. South Place simply uses Donnelly’ s wi thdrawn report to reassert the arguments it made in the first appeal. At oral argument, South Place’s counsel st ated that the o nly fact that changed was the existe nce of the Donnelly report and that the report does not fit into any of the Ross factors

. S econd, as noted by the First Court of Appeals in Shiloh Treatment C enter , there is real potential for misuse of the TMLA dismissal procedures if successive attempts were to be permitted. Shiloh Treatment Ctr. , 608 S.W.3d at 343. If a TMLA movant can lose a t the intermediate court, return to the trial court, and try again wit h new or different evidence throughout the discovery proce ss, there is nothing prohibiting him from doing so a third, fourth,
or fifth time. See id. The TMLA and law of the case doctri ne both derive from concerns of judicial economy, and allowing multipl e dismissal and appeal attempts is contrary to that

concer n. See id.

Accordingly, we hold that our prior opinion that Hudson’s claim is not a HCLC is the
law of the case for the re mainder of the suit. As a result, we overrule South Place’s second is sue and need not address the remainder of i ts issues. See T EX

. R. A PP

. P. 44.1.

D ISPOSITION Having overruled South Place’s second issue, we affirm the trial court’s order denyin g Sout h Place’s motion to dismiss Hudson’s suit against it

.

B RIAN H OYLE Justice

Opinion delivered March 9 , 2022. Panel c onsisted of Wor then, C.J., Hoy le, J., and Neeley, J.6 

## COURT OF APPEALS

TWELFTH COURT OF APPEA LS DIS TRICT OF TEXAS

JUDGMENT

MARCH 9 , 2022

NO. 12

- 21

- 00150

- CV

SOUTH PLACE SNF, LP , Appellant V. JOHN HUDSON , Appelle e

App eal from the 173rd District Court
of Henderson County, Texas (Tr.Ct.No. CV19

- 0123

- 392 )

THIS CAUSE came to be heard on the ora l argu ments, appellate record and brief s filed herein, and the same being considered, it is the opinion of this court that t here was no

err or in the trial court ’ s order

. It is therefore ORDERED, ADJUDGED and DECREED that the order of the court below denyin g Sout h Place’s motion to dismiss John Hudson’s suit against it be in all things affirmed , all costs of this appeal a re asse ssed against th e Appellant, SOUTH PLACE SNF, LP , and that this decision be certified to the court below for observance. Brian Hoyle

. , Just ice Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.