Thе STATE of Texas, Appellant, v. EMERITUS CORPORATION, Appellee.
NUMBER 13-13-00529-CV
Court of Appeals of Texas, Corpus Christi-Edinburg.
Delivered and filed March 26, 2015.
Before Chief Justice Valdez and Justices Rodriguez and Longoria
466 S.W.3d 233
Wilmot also argues that there was no evidence that his fraudulent inducement was the proximate cause of Bouknight‘s damages. He argues that factors such as the financial crash of 2008 and the civil war in Côte d‘Ivoire were the causes of the failure of the Peace Refinery Project and CIPR. However, as discussed above, the evidence demonstrates that Wilmot induced Bouknight into the EEA by misrepresenting his ability to bind CIPR to the terms of the EEA. According to Wilmot‘s own testimony, CIPR never intended to honor the EEA, and Wilmot knew this within two months after he and Bouknight executed the EEA. However, he continued to assign Bouknight job responsibilities and Bouknight performed his obligations under the EEA for more than a year and a half, relying on Wilmot‘s initial misrepresentation and on his continued representations that the financing was being arranged and that Bouknight would eventually be paid pursuant to the EEA. We conclude that there is evidence that Wilmot‘s misrepresentation was the cause of Bouknight‘s damages, as found by the trial court.
Wilmot also argues that Bouknight waived his $25,000 per month allowance and that Bouknight waived any requirement of written notice of termination, but these contentions are likewise unsupported by the record. Wilmot further contends that employment law principles limit Bouknight‘s recovery in this case. However, Wilmot does not point to any place in the record where he presented this argument to the trial court. Accordingly, it is waived. See
We overrule Wilmot‘s third issue.
Conclusion
We affirm the judgment of the trial court.
Charles A. Deacon, Norton Rose Fulbright US LLP, San Antonio, TX, for The State.
OPINION
Opinion by Chief Justice Valdez
Emeritus Corporation (“Emeritus“) operates an assisted living facility called Canterbury Court in Cameron County, Texаs. In August 2012, a resident of Canterbury Court, suffering from dementia with a “history of exit-seeking behaviors,” was left unsupervised and left the facility through its activity-room courtyard. The resident was found dead shortly thereafter. After an investigation, the State of Texas, acting by and through the Office of the Attorney General (“OAG“), filed suit against Emeritus seeking statutory civil
Emeritus moved to dismiss the case on grounds that it constituted a health care liability claim under the Texas Medical Liability Act (TMLA) and the State had failed to file an expert report. See
I. BACKGROUND
The State of Texas, acting by and through the OAG, “acting within the scope of his official duties under the Constitution and the laws of the State of Texas,” and “at the request of the Commission of the Texas Department of Aging and Disability Services” (“DADS“), filed a petition against Emeritus under the DTPA and ALFLA seeking civil penalties, attorney‘s fees, and injunctive relief on grounds that Emeritus violated the minimum standards applicable to assisted living facilities in Texas, thereby threatening the health and safety of its residents, and Emeritus misrepresented the services being offered at Canterbury Court. The State further asserted that:
The State has reason to believe that Defendant is engaging in, has engaged in, or is about to engage in, the unlawful аcts or practices set forth below, that Defendant has, by means of these unlawful acts and practices, caused damage to or acquired money or property from persons, and that Defendant adversely affects the lawful conduct of trade and commerce, thereby directly or indirectly affecting the people of this State. Therefore, the Consumer Protection Division of the Office of the Attorney General of the State of Texas has determined that these proceedings are in the public interest.
The State‘s petition alleged that DADS had investigated an incident at Canterbury Court regarding “a resident who was found dead in a nearby field three days after he eloped from the facility.” According to the DADS report, on August 17, 2012, Emeritus had conducted a preadmission assessment of the resident stating that the resident had a “history of exit seeking behaviors.” On August 20, 2012, Emeritus admitted the resident to the Memory Care unit, a locked unit at Canterbury Court, with diagnoses of dementia and hypertension. On August 21, 2012, an Emeritus staff member accompanied the resident to a doctor‘s appointment where the resident attempted to leave without the staff member, thereby causing Emeritus to place the resident on an “alert charting” status to document his behavior every shift, and Emeritus instructed the staff that a staff member should monitor the patient “at all times.” Nevertheless, on August 23, 2012, the resident was left unsupervised and eloped from the Memory Care unit through its activity room courtyard. The resident broke the boards from the fence enclosing the air conditioning unit, climbed on the air conditioning unit,
The State‘s petition further alleged that Emeritus‘s acts and omissions failed to comply with representations made on its website that its facilities provided trained staff and monitoring twenty-four hours each day and helped residents maintain their dignity while aging, and advertised “specialized units for residents with Alzheimer‘s or dementia.” The State also asserted that Emeritus failed to implement its own policies and procedures and misrepresented its services insofar as its policies and procedures protected residents from neglect.
The State sought a temporary and permanent injunction requiring Emeritus to: (1) keep its facilities’ alarms, doorbells, and chimes activated; inspect оr test the alarms, doorbells, and chimes at least once a month to assure adequate performance; replace malfunctioning alarms, doorbells, and chimes within twenty four hours; and keep records regarding such replacement; (2) require its employees to take a training course at least once a year regarding State laws, including but not limited to ALFLA, and policies and procedures relating to the duty to protect and safeguard residents’ rights to be free from abuse, neglect, and exploitation, and require the employees to provide a signed acknowledgment that they had completed the training; (3) ensure that residents are able to enter and re-enter the facility without hindrance; (4) post signs informing employees that they are prohibited from violating residents’ rights to be free from abuse, neglect, and exploitation, including but not limited to disabling alarms, door bells, and chimes; and (5) represent that the trial court, the OAG, or DADS has approved any good or service sold or offered for sale by Emeritus, or has approved any of its business practices.
The State sought “civil penalties” against Emeritus including “not less than $100.00 nor more than $10,000.00 for each day” an ALFLA violation occurred, an amount “not to exceed more than $20,000.00 per violation of the DTPA,” and an additional amount of not more than $250,000.00 if the false, misleading, or deceptive acts or practice alleged was calculated to acquire or deprive money or other property from a consumer who was 65 years or older when the acts or practice occurred. The State also sought attorney‘s fees, investigation costs, and prejudgment and post judgment interest. See
Emeritus answered the State‘s lawsuit and asserted the affirmative defense that each of the State‘s claims constitutes a “health care liability claim” under the TMLA. Emeritus subsequently moved to dismiss the lawsuit pursuant to Texas Civil Practice and Remedies Code section 74.351 because the State failed to file an expert report. See
On September 10, 2013, the trial court issued an order dismissing the State‘s claims with prejudice pursuant to section 74.351(b). The trial court also awarded Emeritus $55,000 in attorney‘s fees for the trial proceedings, $5,000 for appellate proceеdings in this Court, and an additional $5,000 for appellate proceedings in the Texas Supreme Court.
This appeal ensued. By two issues, the State contends: (1) the State is not subject to the expert report requirement in the TMLA when it, pursuant to its police power, seeks only statutory civil penalties and injunctive relief for violations of the DTPA and ALFLA; and (2) Emeritus is not entitled to attorney‘s fees and costs under section 74.351(b) of the civil practice and remedies code. Emeritus contends, in contrast, that the State is a claimant seeking the recovery of damages in a health care liability claim, and is thus subject to the TMLA expert report requirement.
II. STATUTORY SCHEMES
This case involves three separate statutory schemes: the DTPA, the ALFLA, and the TMLA. We briefly examine each in the context of the pleadings filed in this case.
A. DTPA
The DTPA‘s underlying purposes “are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.”
False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division [of the Attorney General‘s office] under section 17.47, 17.58, 17.60, and 17.61 of this code.
(a) Whenever the consumer protection division has reason to believe that any person is engaging in, has engaged in, or is about to engage in any act or practice declared to be unlawful by this subchapter, and that proceedings would be in the public interest, the division may bring an action in the name of the state against the person to restrain by temporary restraining order, temporary injunction, or permanent injunction the use of such method, act, or practice.
Nothing herein shall require the consumer protection division to notify such person that court action is or may be under consideration. Provided, however, the consumer protection division shall, at least seven days prior
to instituting such court action, contact such person to inform him in general of the alleged unlawful conduсt. Cessation of unlawful conduct after such prior contact shall not render such court action moot under any circumstances, and such injunctive relief shall lie even if such person has ceased such unlawful conduct after such prior contact. Such prior contact shall not be required if, in the opinion of the consumer protection division, there is good cause to believe that such person would evade service of process if prior contact were made or that such person would destroy relevant records if prior contact were made, or that such an emergency exists that immediate and irreparable injury, loss, or damage would occur as a result of such delay in obtaining a temporary restraining order. (b) An action brought under Subsection (a) of this section which alleges a claim to relief under this section may be commenced in the district court of the county in which the person against whom it is brought resides, has his principal place of business, has done business, or in the district court of the county where the transaction occurred, or, on the consent of the parties, in a district court of Travis County. The court may issue temporary restraining orders, temporary or permanent injunctions to restrain and prevent violations of this subchapter and such injunctive relief shall be issued without bond.
(c) In addition to the request for a temporary restraining order, or permanent injunction in a proceeding brought under Subsection (a) of this section, the consumer protection division may request, and the trier of fact may award, a civil penalty to be paid to the state in an amount of:
(1) not more than $20,000 per violation; and
(2) if the act or practice that is the subject of the proceeding was calculated to acquire or deprive money or other property from a consumer who wаs 65 years of age or older when the act or practice occurred, an additional amount of not more than $250,000.
(d) The court may make such additional orders or judgments as are necessary to compensate identifiable persons for actual damages or to restore money or property, real or personal, which may have been acquired by means of any unlawful act or practice. Damages may not include any damages incurred beyond a point two years prior to the institution of the action by the consumer protection division. Orders of the court may also include the appointment of a receiver or a sequestration of assets if a person who has been ordered by a court to make restitution under this section has failed to do so within three months after the order to make restitution has become final and nonappealable.
(e) Any person who violates the terms of an injunction under this section shall forfeit and pay to the state a civil penalty of not more than $10,000 per violation, not to exceed $50,000. In determining whether or not an injunction has been violated the court shall take into consideration the maintenance of procedures reasonably adapted to insure compliance with the injunction. For the purposes of this section, the district court issuing the injunction shall retain jurisdiction, and the cause shall
be continued, and in these cases, the consumer protection division, or the district or county attorney with prior notice to the consumer protection division, acting in the name of the state, may petition for recovery of civil penalties under this section. (f) An order of the court awarding civil penalties under Subsection (e) of this section applies only to violations of the injunction incurred рrior to the awarding of the penalty order. Second or subsequent violations of an injunction issued under this section are subject to the same penalties set out in Subsection (e) of this section.
(g) In determining the amount of penalty imposed under Subsection (c), the trier of fact shall consider:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited act or practice;
(2) the history of previous violations;
(3) the amount necessary to deter future violations;
(4) the economic effect on the person against whom the penalty is to be assessed;
(5) knowledge of the illegality of the act or practice; and
(6) any other matter that justice may require.
(h) In bringing or participating in an action under this subchapter, the consumer protection division acts in the name of the state and does not establish an attorney-client relationship with another person, including a person to whom the consumer protection division requests that the court award relief.
B. ALFLA
The ALFLA is codified in the health and safety code. See
Section 247.045 provides, in relevant part, that the OAG may enforce the ALFLA by seeking civil penalties:
(a) Except as provided by Subsections (b) and (c), a person who violates this chapter or who fails to comply with a rule adopted under this chapter and whose violation is determined by the department to threaten the health and sаfety of a resident of an assisted living facility is subject to a civil penalty of not less than $100 nor more than $10,000 for each act of violation. Each day of a continuing violation constitutes a separate ground of recovery.
(b) A person is subject to a civil penalty if the person:
(1) is in violation of Section 247.021; or
(2) has been determined to be in violation of Section 247.021 and violates any other provision of this chapter
or fails to comply with a rule adopted under this chapter. (c) The amount of a civil penalty under Subsection (b) may not be less than $1,000 or more than $10,000 for each act of violation. Each day of a continuing violation constitutes a separate ground of recovery.
(d) The attorney general may institute and conduct a suit to collect a penalty and fees under this section at the request of the department. If the attorney general fails to notify the department within 30 days of referral from the department that the attorney general will accept the case, the department shall refer the casе to the local district attorney, county attorney, or city attorney. The district attorney, county attorney, or city attorney shall file suit in a district court to collect and retain the penalty.
(e) Investigation and attorney‘s fees may not be assessed or collected by or on behalf of the department or other state agency unless a penalty described under this chapter is assessed.
(f) The department and attorney general, or other legal representative as described in Subsection (d), shall work in close cooperation throughout any legal proceedings requested by the department.
(g) The commissioner of human services must approve any settlement agreement to a suit brought under this chapter.
(h) If a person who is liable under this section fails to pay any amount the person is obligated to pay under this section, the state may seek satisfaction from any ownеr, other controlling person, or affiliate of the person found liable. The owner, other controlling person, or affiliate may be found liable in the same suit or in another suit on a showing by the state that the amount to be paid has not been paid or otherwise legally discharged. The department by rule may establish a method for satisfying an obligation imposed under this section from an insurance policy, letter of credit, or other contingency fund.
C. TMLA
Among the legislature‘s stated purposes in enacting the TMLA were reducing the excessive frequency and severity of HCLCs and decreasing the cost of those claims, while dоing so in a manner that would not unduly restrict a claimant‘s rights. See CHCA Woman‘s Hosp., LP v. Lidji, 403 S.W.3d 228, 232 (Tex. 2013). The Texas Supreme Court has explained that the “fundamental goal” of the TMLA is “to make health care in Texas more available and less expensive by reducing the cost of health care liability claims.” Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex. 2011).
To further these goals, a health care liability claimant must serve an expert report on each defendant no later than the 120th day after the defendant‘s answer is filed. See
III. STANDARD OF REVIEW
Generally, an appellate court reviews a ruling on a motion to dismiss under Chapter 74 for an abuse of discretion. Jelinek v. Casas, 328 S.W.3d 526, 538-39 (Tex. 2010); Bowie Mem‘l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc., 46 S.W.3d at 877-78. However, when the resolution of an issue on appeal requires the interpretation of a statutе, an appellate court applies a de novo standard of review. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012); Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012); Tex. Laurel Ridge Hosp., LP v. Almazan, 374 S.W.3d 601, 604 (Tex. App.—San Antonio 2012, no pet.). Thus, in determining whether the State‘s claims constitute health care liability claims that are subject to Chapter 74, we apply a de novo standard of review. Tex. W. Oaks, 371 S.W.3d at 177; see Loaisiga, 379 S.W.3d at 254-55.
IV. ANALYSIS
By its first issue, the State asserts that it is not subject to the TMLA‘s expert report requirement when it is acting pursuant to its police power and seeking only statutory civil penalties and injunctive relief. More specifically, the State asserts that this lawsuit is not subject to the expert report requirements of the TMLA because it is not asserting a health care liability claim and it is not a claimant subject to the report requirement. Emeritus asserts otherwise. The State and Emeritus dispute virtually all potentially relevant issues in this appeal, including whether the State is a claimant or a person subject to the TMLA, whether the State‘s claims are health care liability claims, and whether the Stаte is seeking damages under the TMLA. The parties invoke innumerable policy arguments regarding the disparate effects of a decision in this case.
In analyzing the issues herein, “[o]ur task is to effectuate the Legislature‘s expressed intent.” In re Allen, 366 S.W.3d 696, 703 (Tex. 2012) (orig. proceeding); see Ritchie v. Rupe, 443 S.W.3d 856, 866 (Tex. 2014); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). In so doing, we do not impose our personal policy choices, second-guess the policy choices that inform our statutes, or weigh the effectiveness of their results. Ritchie, 443 S.W.3d at 866; Iliff v. Iliff, 339 S.W.3d 74, 79 (Tex. 2011); McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003). We focus on the words of the statute, because “[l]egislative intent is best re-
Where the statutory text is clear, an appellate court presumes the words chosen are “the surest guide to legislative intent.” Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010) (quoting Entergy Gulf States, 282 S.W.3d at 437). In doing so, we first look to the definitions prescribed by the legislature and any technical or particular meaning the words have acquired. See
Only after considering the legislature‘s definitions does an appellate court look to the words’ “plain and common meaning[s], unless [the legislature‘s] contrary intention is apparent from the context, or unless such a construction leads to absurd results.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008) (citations omitted). Thus, in the absence of statutory definitions, the “ordinary meaning of the statutory text is the first dip of the oar as courts embark on interpretation of a statute.” In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014) (orig. proceeding). We limit our analysis to the words of the statute and apply the plain meaning of those words “unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011); see Jaster, 438 S.W.3d at 562. We presume that a definition of a common word accords with and does not conflict with the ordinary meaning unless the language clearly indicates otherwise. In re Ford Motor Co., 442 S.W.3d at 271. To determine a word‘s common, ordinary meaning, we look to a wide variety of sources, including dictionary definitions, treatises and commentaries, the appellate courts’ prior constructions of the word in other contexts, the use and definitions of the word in other statutes and ordinances, and the use of the words in the rules of evidence and procedure. See Jaster, 438 S.W.3d at 563.
Further, we consider words in light of the “lexical environment” in which we find them.”
We begin our analysis with the statute‘s words and then consider the apparent meaning of those words within their context. See Jaster, 438 S.W.3d at 562. In this case, we look to the statutory requirements of the TMLA. Chapter 74 of the TMLA defines a “health care liability claim” as:
A cause of action against a health care provider or physician for treatment, lаck 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 injury to or death of a claimant, whether the claimant‘s claim or cause of action sounds in tort or contract.
In order to determine whether a claim is a health care liability claim, we consider the underlying nature of the claim. Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 394 (Tex. 2011); Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). Artful pleading cannot alter that nature. Omaha Healthcare Ctr., LLC, 344 S.W.3d at 394; Yamada, 335 S.W.3d at 196. We consider the record as a whole, the pleadings, and the factual allegations contained therein. Loaisiga, 379 S.W.3d at 259. When the underlying facts are encompassed by provisions of the TMLA, then all claims based on those facts must be brought as health care liability claims. Yamada, 335 S.W.3d at 193-94; see PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 552 (Tex. 2013). Claims “which require[] the use of expert health care testimony to support or refute the allegations” are health care liability claims. Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 727 (Tex. 2013); see Tex. W. Oaks, 371 S.W.3d at 182. However, “[e]ven when expert medical testimony is not necessary,” the claim may still be a health care liability claim. Tex. W. Oaks, 371 S.W.3d at 182 (citing Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005)). The broad language of the TMLA evidences legislative intent for the statute to have expansive application. Loaisiga, 379 S.W.3d at 256; see also Rio Grande Valley Vein Clinic, P.A., 431 S.W.3d at 65. According to the Tеxas Supreme Court, the “breadth of the statute‘s text” essentially creates a rebuttable presumption that a claim is a health care liability claim if it is against a physician or health care provider and is based on facts implicating the defendant‘s conduct during the patient‘s care, treatment, or confinement. Loaisiga, 379 S.W.3d at 252.
Our analysis of the claims made in this case focuses on the definition of a “claimant” under the TMLA. A “claimant” under the TMLA is defined as “a person, including a decedent‘s estate, seeking or who has sought recovery of damages in a health care liability claim.” See
The State contends that it is not seeking damages as required by the statutory definition of a claimant, but is instead only seeking statutory civil penalties and injunctive relief. In contrast, Emeritus contends that the TMLA‘s definition of a claimant utilizes the broad term “damages,” which includes civil penalties, and the TMLA does not require that the damages sought must be compensatory in nature.2 Citing United States v. Ursery, 518 U.S. 267, 283-84 (1996) and Ex Parte Baucom, 928 S.W.2d 748 (Tex. App.—Beaumont 1996, pet. ref‘d), Emeritus states that civil penalties are a “rough form of liquidated damages” for the public harms caused by illegal conduct. Emeritus also contends that civil penalties are designed at least in part “to compensate the government.” Ursery, 518 U.S. at 284. Emeritus thus argues that civil penalties act as compensatory damages under the TMLA.
The general term “damages” is not defined in the TMLA.3 See
The United States Supreme Court and various federal courts have rejected the proposition that damages, which are compensatory in nature and payable to a private litigant, are congruent with civil penalties, which are punitive in nature and payable to a governmental entity. See Gabelli v. S.E.C., 568 U.S. 442, 1223 (2013); Tull v. United States, 481 U.S. 412, 422 (1987);
The Texas Supreme Court has not expressly addressed whether damages under the TMLA include civil penalties so as to subject governmental entities seeking civil penalties to the same requirements as private claimants seeking damages.4 However, the foregoing definitions and authorities comport with analysis from the Texas Supreme Court regarding whether statutes which provide for penalties, rather than compensation, allow private causes of action for statutory violations. Brown v. De La Cruz, 156 S.W.3d 560, 563-64 (Tex. 2004). In Brown, the supreme court held that a former version of the property code that subjected a seller of residential property to a penalty for each day that the vendor failed to transfer title after the purchaser‘s final payment did not provide the purchaser with a private cause of action. Id. at 561. In so holding, the court reasoned that statutory fines or penalties are generally not payable to a private litigant.
Based on the ordinary meaning of “damages” and “civil penalties” as demonstrat-
Our conclusion is buttressed by considering the purposes, policies, procedural requirements, and remedies of the TMLA, the DTPA, and the ALFLA to determine the correct application of the statutes. See, e.g., Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 441 (Tex. 2012) (comparing the purposes, policies, procedural requirements, and remedies of the insurance code and the workers’ compensation act to determine whether the Legislature intended to effectively provide two different remedies to injured workers); City of Waco v. Lopez, 259 S.W.3d 147, 155-56 (Tex. 2008) (considering the relationship between the Texas Whistleblower Act and the Texas Commission on Human Rights Act).
The fundamental purposes of these statutes are different. The DTPA and ALFLA are designed to promote the fundamental goals of protecting consumers and residents of assisted living facilities. Compare
In contrast, the TMLA was designed to address crises affecting medical and health care and medical malpractice insurance. The Texas Supreme Court recently addressed the historical purposes of the TMLA and its predecessors. Fredericksburg Care Co., LP. v. Perez, No. 3-0573, 461 S.W.3d 513, 522-24, 2015 WL 1035343, at *6-7 (Tex. Mar. 6, 2015). In 1977, the predecessor to the TMLA was expressly intended to reduce costs of medical insurance, and the reason for enactment was a “medical malpractice insurance crisis in the State of Texas.”
The substantive and procedural requirements of the statutes implicated in this case are pervasively different and inconsistent and are far too numerous to detail herein. For example, the TMLA measures the limitations period from one of three dates: (1) the occurrence of the breach or tort; (2) the last date of the relevant course of treatment; or (3) the last date of the relevant hospitalization. See
Emeritus contends that the fact that the statutes at issue contain conflicting procedural and substantive requirements is immaterial because the Legislature has already declared that the TMLA prevails against all other existing law. See
When construing a statute, we consider the “object sought to be obtained” by the statute as well as the “consequences of a particular construction.”
Based on the foregoing, we sustain the State‘s first issue. The State is not subject to the expert report requirement in the TMLA when it, pursuant to its police power and acting in its sovereign capacity, seeks statutory civil penalties and injunctive relief. Accordingly, the trial court erred in granting Emeritus‘s motion to dismiss under the TMLA. Because we have determined that the trial court erred in granting Emeritus‘s motion to dismiss, we further sustain the State‘s second issue pertaining to the assessment of attorney‘s fees and costs under section 74.351(b). See
V. Conclusion
Having sustained the State‘s first and second issues, we reverse the trial court‘s order granting Emeritus‘s motion to dismiss and awarding attorney‘s fees against the State, and we remand this case to the trial court for further proceedings consistent with this opinion.