Benedict Olusola, M.D. v. Nteesha S. Smith

Opinion

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 well-

settled, 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). 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.

–2– 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

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BENEDICT OLUSOLA, M.D., Appellant On Appeal from the County Court at Law No. 1, Dallas County, Texas No. 05-14-01582-CV V. Trial Court Cause No. CC-14-03380-A. Opinion delivered by Justice Bridges. NTEESHA S. SMITH, Appellee 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.

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