Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/10/2015 12:43:45 PM JEFFREY D. KYLE Clerk NO. 03-15-00081-CV THIRD COURT OF APPEALS 4/10/2015 12:43:45 PM JEFFREY D. KYLE 03-15-00081-CV AUSTIN, TEXAS *1 ACCEPTED [4843584] CLERK ____________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN, TEXAS ____________________________________________________________
ACCESS ORTHODONTICS OF EAST 7 TH STREET, P.A. Appellant
v. MIRIAM JAIMES Appellee
____________________________________________________________
On Appeal from the 126 th Judicial District Court Of Travis County, Texas The Honorable Amy Clark Meachum Presiding ____________________________________________________________
APPELLANT, ACCESS ORTHODONTICS OF EAST 7 TH STREET, P.A.’S,
REPLY BRIEF ____________________________________________________________
Robert M. Anderton State Bar No. 00795223 Mark J. Hanna State Bar No. 08919500 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188 mhanna@markjhanna.com Appellant’s Reply Brief – Page i
Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com Appellant’s Reply Brief – Page ii
IDENTITY OF PARTIES AND COUNSEL Access Orthodontics of East 7 th Street, Appellant:
P.A.
Appellant’s Counsel: Robert M. Anderton
State Bar No. 00795223 Mark J. Hanna State Bar No. 08919500 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188 mhanna@markjhanna.com Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com Appellee: Miriam Jaimes
Appellee’s Counsel: J. Lynn Watson
The J.L. Watson Law Firm, P.C. State Bar No. 20761510 9442 N. Capital of Texas Hwy. Plaza 1, Suite 500 Austin, Texas 78759 Telephone: (512) 343-4526 Facsimile: (512) 582-2953 Appellant’s Reply Brief – Page iii
REFERENCE TO THE PARTIES
Appellant will refer to Appellant, Access Orthodontics of East 7 th Street, P.A. as “Access” and Appellee, Miriam Jaimes, as “Jaimes.”
REFERENCE TO THE RECORD Reference Meaning
C.R. Clerk’s Record at page ___
R.R. Reporter’s Record at page ___: line ___
Appellant’s Reply Brief – Page iv
TABLE OF CONTENTS PAGE IDENTITY OF PARTIES AND COUNSEL ………… .....................................iii
REFERENCE TO THE PARTIES ……………………………………… .........iv
REFERENCE TO THE RECORD ……… ............... …………………… .........iv
TABLE OF CONTENTS ……………………………………… .. ……… ......... … v
INDEX OF AUTHORITIES …………………………………………… .............vi
CONCLUSION …………………………………………………… .....................8
PRAYER ……… ...... ………………………………………………… .................8
CERTIFICATE OF COMPLIANCE ……… ............. ………………… ............10
CERTIFICATE OF SERVICE ………………………………… ......................11
Appellant’s Reply Brief – Page v
INDEX OF AUTHORITIES CASES PAGE
Boothe v. Dixon , 180 S.W.3d 915, 919 (Tex. App.—Dallas 2005, no
writ)...............................................................................................................7
Earle v. Ratliff , 998 S.W.2d 882, 89 (Tex.
1999).............................................................................................................7
Froemming v. Perez , No. 04-05—00514-CV, 2006 WL 704479 (Tex.
App.—San Antonio Mar. 22, 2006, no pet.)..................................................3
Gormley v. Stover , 907 S.W.2d 448, 450 (Tex.
1995).............................................................................................................7
Hunsucker v. Fustok , 238 S.W.3d 421, 428 (Tex. App.—Houston [1 st Dist.]
2007, no
writ)...............................................................................................................7
Jernigan v. Langley , 195 S.W.3d 91, 93 (Tex. 2006)(per
curiam)..........................................................................................................3
Lopez v. Osuna , No. 04-14-00310-CV, 2014 Tex. App. LEXIS 12777, Tex.
App.—San Antonio 2014, no writ)................................................................4
MacGregor Med. Ass’n v. Campbell , 985 S.W.2d 38, 40-41 (Tex.
1998).............................................................................................................7
Mills v. Pate , 225 S.W.3d 277, 290 (Tex. App.—El Paso 2006, no
pet.)...............................................................................................................3
Sorokolit v. Rhodes , 889 S.W.2d 239, 242 (Tex. 1994)...............................7
Stockton v. Offenbach , 336 S.W.3d 610, 611 (Tex.
2011).............................................................................................................2
Tex. W. Oaks Hosp., L.P. v. Williams , 371 S.W.3d 171, 177 (Tex.
2012).............................................................................................................3
Appellant’s Reply Brief – Page vi
NO. 03-15-00081-CV ____________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN, TEXAS ____________________________________________________________
ACCESS ORTHODONTICS OF EAST 7 TH STREET, P.A. Appellant
v. MIRIAM JAIMES Appellee
____________________________________________________________
On Appeal from the 126 th Judicial District Court Of Travis County, Texas The Honorable Amy Clark Meachum Presiding ____________________________________________________________
APPELLANT, ACCESS ORTHODONTICS OF EAST 7 TH STREET, P.A.’S,
REPLY BRIEF ____________________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellant, Access Orthodontics of East 7 th Street, P.A., files this reply brief and would show as follows:
INTRODUCTION The purpose of this brief is to rebut two specific portions of Appellee’s *8 brief: (1) Its discussion of the standard of review to clarify that the standard
of review in this case is de novo; and (2) To distinguish this case from the
line of cases cited by appellee that have allowed patients to pursue DTPA
claims against healthcare providers outside the parameters of the Texas
Medical Liability Act.
Standard of Review
Both parties referred to both the abuse of discretion standard of review and the de novo standard of review in their respective briefs. This
matter bears clarification because in this case the only applicable standard
of review is de novo.
In the section of her brief devoted to the proper standard of review in this case Appellee discusses both the abuse of discretion standard and the
de novo standard. Appellee cites the case of Stockton v. Offenbach , 336
S.W.3d 610, 611 (Tex. 2011) for the proposition that, “A court of appeals
reviews a decision to deny a motion to dismiss under Section 74.351 under
an abuse of discretion standard.” But that is not what the Stockton opinion
actually says. On the page referenced by Appellee, the Stockton court
states that, “Under an abuse of discretion standard, the appellate court
defers to the trial court’s factual determinations if they are supported by
evidence, but reviews the trial court’s legal determinations de novo.” Id .
In the instant case the trial court did not make any factual determinations. The motion to dismiss was decided on the pleadings.
Therefore, as later accurately stated by Appellee the standard of review for
determining whether a pleaded claim is a health care liability claim is de
novo. Tex. W. Oaks Hosp., L.P. v. Williams , 371 S.W.3d 171, 177 (Tex.
2012); see also Jernigan v. Langley , 195 S.W.3d 91, 93 (Tex. 2006)(per
curiam). Because the only inquiry in this case is whether Appellee’s claim
is a health care liability claim, the only standard of review in this case is de
novo.
Distinguishing this case from Mills and Froemming
Appellee compares this case to the Mills and Froemming cases in attempting to make the point that her claims should be considered to be
outside the TMLA and she should be allowed to pursue them as claims
under the Deceptive Trade Practices Act [1] . But both of those cases are
distinguishable from the instant case.
*10 The unreported Froemming opinion is most simple to distinguish and is discussed first. Froemming is, quite simply, a case in which the
applicability or lack thereof of the TMLA is not an issue. The Froemming
case does involve a dispute between a dentist and patient over the failure
to complete a course of orthodontics. Froemming at 9. However, the
dentist in Froemming failed to answer the patient’s original petition and a
default judgment was taken. Id. The case was taken up on a restricted
appeal and no mention is made in the entire opinion about the applicability
of the TMLA or whether the patient was making a healthcare liability claim
as that term is defined by the TMLA. For those reasons the Froemming
case is inapplicable to this case.
A case based on failure to provide medical services for which payment had been made which is more applicable to this case is Lopez v.
Osuna , No. 04-14-00310-CV, 2014 Tex. App. LEXIS 12777, Tex. App.—
San Antonio 2014, no writ). In Lopez , the plaintiff, a pregnant mother,
prepaid for birthing services to be provided by a birthing clinic and midwife.
Lopez at 11. Osuna alleged that when she went to the clinic believing she
was in labor she was told to leave and come back a couple of days later.
Id. Shortly thereafter, she began to feel more intense labor pains and had
her husband rush her to the clinic. Lopez at 12. She delivered the baby on
the way to the clinic and when she arrived the midwife refused to provide
any services to her. Id. Lopez sued the midwife and the clinic making
various claims under the DTPA. Lopez at 12. She did not provide an
expert report pursuant to Chapter 74. Id. The midwife filed a motion to
dismiss based on this failure but the trial court denied the motion finding
that Osuna’s claims were not health care liability claims. Id.
The court of appeals determined that Osuna’s claims were health care liability claims. Lopez at 16. In making that determination the court
considered Osuna’s claims, including the fact that she had entered into a
contract by which she would pay Lopez a certain amount prior to the
delivery and she would receive care and attention as promised. Id. As well
as her assertion that “Lopez provided none of the medical assistance for
which she had been paid.” Id. The court stated that, “At the core of
Osuna’s claims is provision of health care during pregnancy.” Lopez at 19.
As a result, the court held that the alleged wrongful acts are inseparable
from Lopez’s rendition of health care. Id. This court should reach the same
result in the instant case.
The Mills case is based on a very narrow set of facts that Texas courts have consistently distinguished and which are not applicable her. In
Mills , the patient, decided to have liposuction and went to the doctor, Pate.
Mills, 225 S.W.3d at 280. Dr. Pate told Mills that after liposuction she
would have no bulges or saddlebags. Id. Dr. Pate performed the
liposuction and Ms. Mills complained about sagging skin and other
problems. Mills, 225 S.W.3d at 281. Dr. Pate performed a second
procedure – a thigh lift – and Mills was again disappointed because she did
not look like Dr. Pate said she would. Mills, 225 S.W.3d at 282. Mills sued
Pate for medical malpractice based on failure to obtain informed consent
and later added a breach of express warranty claim. Mills, 225 S.W.3d at
283. Dr. Pate filed a motion for summary judgment based on limitations
and the applicability of the TMLA and it was granted on all counts. Mills,
225 S.W.3d at 283-84.
In analyzing Mills’ breach of warranty claim the court stated that a cause of action alleges a departure from accepted standards of medical
care or health care if the act or omission complained of is an inseparable
part of the rendition of medical services. Mills, 225 S.W.3d at 289. The
court went on to recount that Mills “alleged that Dr. Pate made the following
representations to her about the quality or characteristics of his services … ”
and then went into detail about each of Dr. Pate’s representations. Id. It
was Mills’ reliance on these representations of the outcome of the
procedure that the court relied upon in deciding that Mills could go forward
with a breach of warranty claim. Mills, 225 S.W.3d at 290. There are no
such allegations of representations or promises by Access of a particular
result of the dental treatment at issue in this case. Therefore there is no
basis for a claim by the Appellee separate and apart from one that is based
on a departure from the standard of care based on the failure to provide
treatment, in this case the removal of the braces. Therefore, the Mills case
is distinguishable and Appellee’s DTPA claim should not be allowed to
proceed.
Texas courts have consistently distinguished the Sorokolit opinion, on which Mills heavily relies [2] . For example, in Hunsucker v. Fustok , 238
S.W.3d 421, 428 (Tex. App.—Houston [1 st Dist.] 2007, no writ), the court of
appeals distinguished the facts of that case in which the patient claimed
that the doctor breached an agreement that the surgery would be
performed a particular way from the Mills and Sorokolit fact patterns in
which a doctor promised a particular result. See also MacGregor Med.
Ass’n v. Campbell , 985 S.W.2d 38, 40-41 (Tex. 1998); Gormley v. Stover ,
907 S.W.2d 448, 450 (Tex. 1995); Earle v. Ratliff , 998 S.W.2d 882, 89
(Tex. 1999); and Boothe v. Dixon , 180 S.W.3d 915, 919 (Tex. App.—Dallas
2005, no writ).
*14 It is clear based on a review of this line of decisions that the Mills case and its predecessor, Sorokolit, are narrowly limited to the specific
facts of those cases in which health care providers promised particular
results from medical procedures, separate and apart from the standard of
care applicable to the particular procedure. Therefore, Mills is not
applicable to this case and should not be considered.
CONCLUSION The Trial Court erred when it denied the motion to dismiss.
Therefore, this court should reverse the trial court’s order and render
judgment that the case is dismissed with prejudice to its refiling and that
Access is awarded attorneys fees in the amount of $5,345.00.
PRAYER FOR THE FOREGOING REASONS , Appellant prays that this Court reverse the trial court’s order denying the motion to dismiss, and render
judgment that Appellee’s claims are dismissed with prejudice and order her
to pay attorney’s fees in the amount of $5,345.00.
Respectfully submitted, LAW OFFICES OF HANNA & ANDERTON By: __/s/_Jon Smith________________ Robert M. Anderton State Bar No. 00795223 Mark J. Hanna State Bar No. 08919500 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188 mhanna@markjhanna.com Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com ATTORNEYS FOR APPELLANT *16 CERTIFICATE OF COMPLIANCE I, Jon Michael Smith, do hereby certify that the Appellant’s Brief contains 1,494 words, according to the word count of the computer
program used to prepare it, in compliance with Texas Rule of Appellate
Procedure 9.4(i)(3).
____/s/_Jon Smith_________________ Jon Michael Smith *17 CERTIFICATE OF SERVICE I, Jon Michael Smith, do hereby certify that a true and correct copy of the foregoing document was delivered to all attorneys of record as listed
below via fax on April 10, 2015.
J. Lynn Watson Via Fax: (512) 582-2953
The J.L. Watson Law Firm, P.C.
State Bar No. 20761510
9442 N. Capital of Texas Hwy.
Plaza 1, Suite 500
Austin, Texas 78759
____/s/_Jon Smith___________ Jon Michael Smith
[1] Mills v. Pate , 225 S.W.3d 277, 290 (Tex. App.—El Paso 2006, no pet.); and Froemming v. Perez , No. 04-05-00514-CV, 2006 WL 704479 (Tex. App.—San Antonio Mar. 22, 2006, no pet.)
[2] Sorokolit v. Rhodes , 889 S.W.2d 239, 242 (Tex. 1994).