Reversed and Remanded and Opinion Filed June 16, 2015 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-01582-CV 

BENEDICT OLUSOLA, M.D., Appellant 

V. 

NTEESHA S. SMITH, Appellee 

On Appeal from the County Court at Law No. 1 

Dallas County, Texas 

Trial Court Cause No. CC-14-03380-A 

MEMORANDUM OPINION 

Before Justices Bridges, Lang, and Evans 

Opinion by Justice Bridges 

Appellant Benedict Olusola, M.D. filed a motion to dismiss pursuant to Texas Civil 

Practice and Remedies Code section 74.351. The trial court granted the motion, dismissed all of 

appellee Nteesha S. Smith’s claims regarding medical services, but failed to award attorney’s 

fees. On appeal, Olusola argues the trial court erred by refusing to dismiss all of Smith’s claims 

because her remaining claims arise from his alleged medical malpractice and are therefore 

subsumed by chapter 74. Because the parties are familiar with the facts and the law is wellsettled, we issue this memorandum opinion. TEX. R. APP. P. 47.1. We reverse and remand to the 

trial court for the determination of reasonable attorney’s fees and costs of court as required under 

Texas Civil Practice and Remedies Code section 74.351(b)(1). 
 –2– 

After Dr. Olusola performed several elective cosmetic surgeries on Smith, she filed an 

original and first amended petition against Dr. Olusola alleging claims for breach of contract, 

breach of warranty, negligence per se, professional liability, medical malpractice, fraudulent and 

negligent misrepresentation, false advertising, deceptive trade practices, fraud, and conspiracy to 

commit fraud. After Smith failed to serve an expert report, Dr. Olusola filed a motion to dismiss 

under section 74.351. The trial court signed an order dismissing “Plaintiff’s claims regarding 

medical services.” It further stated “IT IS THEREFORE ORDERED that pursuant to Tex. Civ. 

Prac. & Rem. Code § 74.351 Plaintiff’s action against Benedict Olusola, M.D. is DISMISSED.” 

However, the trial court did not award attorney’s fees. 

Dr. Olusola filed this interlocutory appeal pursuant to section 51.014(a)(9), which allows 

a party to appeal the denial of all or part of the relief sought by a motion under chapter 74. See 

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West 2015). On appeal, Dr. Olusola argues 

the trial court dismissed Smith’s claims related to only medical malpractice and erred by not 

dismissing all of her claims because they all emanated from his care as a health care provider. 

Dr. Olusola also complains that the trial court failed to award the statutorily mandated attorney’s 

fees. 

We begin by discussing the order granting Dr. Olusola’s motion to dismiss. Although he 

argues the order did not dispose of all of Smith’s claims against him, we do not agree. The order 

contains language that “pursuant to Tex. Civ. Prac. & Rem. § 74.351 Plaintiff’s action against 

Benedict Olusola, M.D. is DISMISSED.” Thus, the order did in fact dismiss all of Smith’s 

claims against him. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (“A 

judgment that disposes of all remaining parties and claims, based on the record in the case, is 

final, regardless of its language.”). Accordingly, Dr. Olusola’s arguments on appeal are moot. 
 –3– 

However, in his brief in this court and his motion to dismiss in the trial court, Dr. Olusola 

requested attorney’s fees and court costs pursuant to section 74.351(b)(1). The trial court failed 

to award the statutorily mandated attorney’s fees and costs. See TEX. CIV. PRAC. & REM. CODE 

ANN. § 74.351(b)(1) (West Supp. 2015) (if a defendant physician files a motion to dismiss after a 

plaintiff fails to timely serve an expert report, the court shall award the affected physician 

reasonable attorney’s fees and costs of court incurred). Accordingly, we reverse and remand to 

the trial court for the determination of reasonable attorney’s fees and costs of court. 

141582F.P05 

 

/David L. Bridges/ 

DAVID L. BRIDGES 

JUSTICE 
 –4– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

BENEDICT OLUSOLA, M.D., Appellant 

No. 05-14-01582-CV V. 

NTEESHA S. SMITH, Appellee 

 On Appeal from the County Court at Law 

No. 1, Dallas County, Texas 

Trial Court Cause No. CC-14-03380-A. 

Opinion delivered by Justice Bridges. 

Justices Lang and Evans participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial court is 

REVERSED and this cause is REMANDED to the trial court for the determination of 

reasonable attorney’s fees and costs of court as required under Texas Civil Practice and 

Remedies Code section 74.351(b)(1). 

 It is ORDERED that appellant BENEDICT OLUSOLA, M.D. recover his costs of this 

appeal from appellee NTEESHA S. SMITH. 

Judgment entered June 16, 2015.