                                                                                     ACCEPTED
                                                                                03-15-00081-CV
                                                                                       4629267
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           3/24/2015 8:33:40 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK



           NO. 03-15-00081-CV                        FILED IN
                                              3rd COURT OF APPEALS
                                                  AUSTIN, TEXAS
                                              3/24/2015 8:33:40 PM
                    IN THE COURT OF APPEALS
                                                JEFFREY D. KYLE
                FOR THE THIRD DISTRICT OF TEXAS       Clerk
                          AT AUSTIN, TEXAS


        ACCESS ORTHODONTICS OF EAST 7TH STREET, P.A.,
                        Appellant

                                    v.

                           MIRIAM JAIMES,
                               Appellee.


             On Appeal from the 126th Judicial District Court
                        of Travis County, Texas
             The Honorable Amy Clark Meachum Presiding


               BRIEF OF APPELLEE MIRIAM JAIMES


J. Lynn Watson, Lead Counsel        Collyn A. Peddie
Texas State Bar No. 20761510        Texas State Bar No. 15707300
THE J.L. WATSON LAW FIRM, P.C.      LAW OFFICES OF COLLYN PEDDIE
9442 N. Capital of Texas Hwy.       440 Louisiana Street, Suite 900
Arboretum Plaza 1, Suite 500        Houston, Texas 77002-4205
Austin, TX 78759                    Telephone: (713) 236-7783
Telephone: (512) 343-4526           Telecopier: (713) 236-7783
Telecopier: (512) 582-2953          email: cp@collynpeddie.com
email: lwatson@jlw-law.com
                                    Counsel for Appellee Miriam Jaimes


                    ORAL ARGUMENT REQUESTED
                                        TABLE OF CONTENTS


TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                iii
    CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   iii
    STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        iv
    OTHER AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . v

COUNTER-STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

COUNTER-STATEMENT OF ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . vi

COUNTER-STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    I.   THE STANDARDS OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    II.  JAIMES’ CLAIM IS NOT A “HEALTH CARE LIABILITY
         CLAIM” UNDER TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13)
          ....................................................... 7
         A.     What Subsection 74.001(a)(13) Includes – and What It Does
                Not . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
         B.     By Its Express Terms, Chapter 74 Does Not Apply to Claims
                that Do Not Sound in Negligence . . . . . . . . . . . . . . . . . . . . . . . 8
         C.     Jaimes Does not Assert a Claim Sounding in Negligence . . . 11
    III. THE DTPA ENCOMPASSES JAIMES’ CLAIMS . . . . . . . . . . . . . 20

CONCLUSION AND PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . 21

RULE 9.4(I) CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22




                                                           ii
                                 TABLE OF AUTHORITIES

CASES

Crawford v. Ace Sign, Inc., 917 S.W.2d 12 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . 20
Diversicare Gen. P’ship, Inc. v. Rubio,
       185 S.W.3d 842 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12, 15, 16
Froemming v. Perez, No. 04-05-00514-CV, 2006 WL 704479
       (Tex. App.—San Antonio Mar. 22, 2006, no pet.) (mem. op.) . . . . . . . . . 19
Gormley v. Stover, 907 S.W.2d 448 (Tex.1995) . . . . . . . . . . . . . . . . . . . . . . . 10, 14
In re Labatt Food Serv., L.P., 279 S.W.3d 640 (Tex. 2009) . . . . . . . . . . . . . . . . . . 6
MacGregor Med. Assoc. v. Campbell, 985 S.W.2d 38 (Tex.1998) . . . . . . . . . . . 10
Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex. 2001) . . . . . . 7
Mills v. Pate, 225 S.W.3d 277 (Tex. App.—El Paso 2006, no pet.) . . . . . . . . . . . 18
Mulligan v. Beverly Enters.-Tex., Inc., 954 S.W.2d 881
       (Tex. App.– Houston [14th Dist.] 1997, no pet.) . . . . . . . . . . . . . . . . . . . . 10
Rio Grande Reg’l Hosp. v. Ayala, 2012 Tex. App. LEXIS 7175
       (Tex. App. Corpus Christi Aug. 24, 2012, pet. filed) . . . . . . . . . . . . . . . . . . 6
Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8
       (Tex. App.-Tyler 2002, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578 (Tex. 2000) . . . . . . . . . . . . . . 7
Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . 5
Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012) . . . . . . . . . . . 6
TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011). . . . . . . . . 6
Walden v. Jeffery, 907 S.W.2d 446 (Tex.1995) . . . . . . . . . . . . . . . . . . . . 10, 13-15
Wall v. Parkway Chevrolet, Inc., 176 S.W.3d 98, 104
       (Tex. App.—Houston [1st Dist.] 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . 6
Waters ex rel. Walton v. Del-Ky, Inc., 844 S.W.2d 250
       (Tex. App.-Dallas 1992, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                   iii
STATUTES

TEX. BUS. & COM. CODE ANN. § 17.41 (West 2002) . . . . . . . . . . . . . . . . . . . . . . 11
TEX. BUS. & COM. CODE ANN. § 17.46(b)(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
TEX. BUS. & COM. CODE ANN. § 17.49 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13) . . . . . . . . . . . . . . . 4, 5, 7-9, 11-13
TEX. CIV. PRAC. & REM. CODE § 74.004(a) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 13
TEX. CIV. PRAC. & REM. CODE § 74.051(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 20
TEX. CIV. PRAC. & REM. CODE § 74.052(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 20
TEX. CIV. PRAC. & REM. CODE § 74.351(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
TEX. CIV. PRAC. & REM. CODE § 74.351(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . vi, 4
TEX. REV. CIV. STAT. ANN. art. 4590i, § 1.03(a) . . . . . . . . . . . . . . . . . . . . . . . . . 10
TEX. REV. CIV. STAT. ANN. art. 4590i, § 12.01(a) . . . . . . . . . . . . . . . . . . . . . . . . . 13



OTHER AUTHORITIES

Ecke, Joseph R., Medical Professionals and the DTPA;
      State Bar of Texas Journal of Consumer and Commercial Law,
      Vol. 14, No. 3, Summer 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                    iv
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant/Defendant’s appeal is meritless. As a result, there is no need for oral

argument. If, however, this Court does not agree and grants oral argument,

Appellee/Plaintiff Jaimes would request the opportunity to present argument.

                   COUNTER-STATEMENT OF THE CASE

      Appellee/Plaintiff (hereinafter referred to as “Jaimes”) objects to the statement

of the case set forth in Appellant/Defendant’s Brief because it contains pure argument,

dressed up as facts and procedure, and attempts to mischaracterize Jaimes’ claims as

“health care liability claims” as defined by the Texas Medical Liability Act

(“TMLA”). TEX. CIV. PRAC. & REM. CODE § 74.001, et seq.

      A quick review of the pleadings in this case, see 1 CR 16-22, reveals that

Jaimes asserts claims as a consumer under the Texas Deceptive Trade Practices.

Period. Jaimes bought and paid for a product and services that she never received.

She is not alleging negligence, medical malpractice, or any variation of a health care

claim. As demonstrated below, Jaimes’ claims against Appellant/Defendant are not

and cannot be considered “health care liability claims.” As a result, any expert report

requirements applicable to claims she did not file do not apply here. The trial court’s

refusal to dismiss her claims was correct.




                                             v
            COUNTER-STATEMENT OF ISSUE PRESENTED

1.   Whether the trial court was correct in refusing to apply the expert report
     requirement applicable to “health care liability claims” under the TEX. CIV.
     PRAC. & REM. CODE § 74.351(b) to a claim, that involves no negligence or
     other “claimed departure from accepted standards” of care or services, brought
     by a consumer solely under the Texas Deceptive Trade Practices - Consumer
     Protection Act.




                                       vi
                        COUNTER-STATEMENT OF FACTS

       Appellee/Plaintiff Miriam Jaimes (hereinafter referred to as “Jaimes”) objects

to the entirety of the purported Statement of Facts included in Appellant’s Brief. Like

its Statement of the Case, Appellant’s Statement of Facts is pure argument and is

highly misleading, so much so as to be useless to the court. For example, contrary to

what Appellants would have this court believe, Jaimes has asserted claims for

economic damages against Appellant/Defendant solely for violations of the Texas

Deceptive Trade Practices - Consumer Protection Act (“DTPA”), nothing else.1 For

this and the reasons that follow, Jaimes provides this Counter-Statement.

       The following facts are essentially undisputed: Appellant/Defendant – Access

Orthodontics of East 7th Street, P.A. (“Access”), an orthodontics business which is a

“professional association” organized under the laws of the State of Texas – offered to

provide orthodontic services and goods of “full braces (upper and lower),” including

“complete services,” at the cost of $4,000.00 to Jaimes. (1 CR 18.) In making this

offer, Access presented to Jaimes a document entitled “Payment Options,” which

summarized and confirmed the offer of such services at the cost of $4,000.00, and

       1
          See Plaintiff’s First Amended Original Petition (1 CR 16-22). Despite the “case type”
description of “malpractice” stated in the court’s record, presumably the result of information from
Appellant/Defendant, Jaimes has not asserted against Appellant/Defendant any claims of medical
or other professional malpractice, and Jaimes’ claims against Appellant/Defendant are based wholly
upon allegations that Appellant/Defendant violated the Texas Deceptive Trade Practices - Consumer
Protection Act. See Plaintiff’s First Amended Original Petition (1 CR 16-22).

                                                 1
furthermore, which described a payment schedule for same in the amount of $250.00

per month. (1 CR 18). Jaimes accepted Access’ offer, and Jaimes immediately paid

$1,000.00 as a down payment. Id. It is also undisputed that, thereafter, Jaimes timely

made monthly payments in the amount of $250.00 each. Id. Indeed, Jaimes paid the

full, agreed-upon cost for Access’ services in a timely manner. Id. Jaimes’s final

payment was completed in January of 2012. (1 CR 18-19).

      Despite having received the full, agreed-upon payment from Jaimes in a timely

manner, Access failed to provide the services and goods which it contracted to deliver.

(1 CR 19). Specifically, after wearing the braces for the prescribed time period, and

after complying with all of Access’ instructions regarding regular adjustments to the

appliances (braces), Jaimes scheduled an appointment at Access’ office for removal

of her braces in November of 2012. (1 CR 19). Access canceled the appointment.

Id. Despite Jaimes’s multiple attempts to reschedule an appointment for the removal

of her braces, a service for which she had already paid, Access canceled all proposed

appointments and made excuses to avoid the removal of the braces. Id.          Indeed,

Access never delivered the services for which Jaimes had already paid. Id. It is

undisputed that Access gave no medical reason to Jaimes for its failure to remove the

braces. Jaimes was forced to save additional money, and wait until she could save




                                          2
enough money, to pay a different orthodontist to have her braces removed by a

different orthodontist.

       After sending proper statutory notice and complying with all statutory

conditions precedent, Jaimes sued Access under the Texas Deceptive Trade Practices -

Consumer Protection Act, claiming in her petition that Access violated various

provisions of that consumer protection statute, including (but not limited to) its

dissemination of a statement known by Access to materially misrepresent the cost or

character of a service for the purpose of inducing Jaimes to contract with regard to the

service offered by Appellant. (1 CR 19-20.) Jaimes did not state in her petition any

claims against Access for medical negligence, nor did Jaimes state in her petition any

other kind of “health care liability claims.” Instead, Jaimes’ claims were based solely

on Access’ intentional and knowing refusal to perform the services for which it had

been fully prepaid.2

       Access answered Jaimes’ lawsuit, stating that Jaimes’ claims were somehow

governed by Chapter 74 of the Texas Civil Practice & Remedies Code and that Jaimes

had failed to provide Access with notice of suit and medical authorization as required

by that statute. (1 CR 12-13). Thereafter, Access moved to dismiss Jaimes’ claims


       2
          (1 CR 16-22). Jaimes’ original petition was filed on January 20, 2014, and Jaimes filed
an amended petition on May 16, 2014, identical to the original petition filed on January 20, 2014
but for the addition of language compliant with Texas Rule of Civil Procedure 47.

                                               3
on the ground that Jaimes had not provided written notice of claim and authorization

pursuant to TEX. CIV. PRAC. & REM. CODE § 74.051(a) and TEX. CIV. PRAC. & REM.

CODE § 74.052(a), nor had Jaimes filed an expert report pursuant to TEX. CIV. PRAC.

& REM. CODE § 74.351(a) and (b). (1 CR 23-26).

      Both parties appeared and presented argument at the hearing on Access’ motion

to dismiss. (1 RR 1-2). Counsel for Jaimes argued that the facts presented in Jaimes’

petition did not meet the definition of a “health care liability claim” as set forth in

Chapter 74 of the Texas Civil Practice and Remedies Code, and, therefore, Jaimes was

not required by such statute to have provided an expert report because Jaimes’ claims

were not governed by that statute. (1 RR 10-12). The trial court agreed and denied

Access’ motion to dismiss. (1 CR 41). Access timely appealed. (1 CR 45-46.)

                          SUMMARY OF ARGUMENT

      Appellant seeks nothing less than a dramatic – and unwarranted – extension of

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13)’s expert report requirement to claims

it was never intended to encompass, and special treatment and exemptions for

businesses that provide any kind of good or services that may even remotely implicate

one’s health from the ordinary operation of Texas’ consumer protection statutes.

Nothing in Texas law authorizes either this court or the trial court to engage in such

a radical rewrite of Texas law. For that reason and those that follow, the trial court’s


                                           4
order denying Access’ Motion to Dismiss under TEX. CIV. PRAC. & REM. CODE §

74.001(a)(13) was proper. Its decision should be affirmed.

       Under no definition in Texas law can Jaimes’ claim against Access be

considered a “health care liability claim” because Jaimes has not asserted any claims

even sounding negligence against Access, nor has Jaimes claimed any departure by

Access from any accepted standards of medical care, or health care, or safety or

professional or administrative services directly related to health care.

       Jaimes is not required to provide an expert report3 unless her claim is

determined to be a “health care liability claim” under Chapter 74 of the Texas Civil

Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). TEX.

CIV. PRAC. & REM. CODE § 74.351(a) and (b).                    Because her claims are not

encompassed by Chapter 74, the trial court was correct in denying Access’ Motion to

Dismiss. Its decision should be affirmed.

                                       ARGUMENT

I.     THE STANDARDS OF REVIEW

       A court of appeals reviews a decision to deny a motion to dismiss under Section

74.351 under an abuse of discretion standard. See Stockton v. Offenbach, 336 S.W.3d


       3
         Furthermore, Jaimes was not required to give written notice of claim or authorization
because her claim is not a “health care liability claim”. TEX. CIV. PRAC. & REM. CODE § 74.051(a)
and TEX. CIV. PRAC. & REM. CODE § 74.052(a).

                                               5
610, 615 (Tex. 2011). The abuse of discretion standard imposes an especially onerous

burden on Appellant here. A trial court may be found to have abused its discretion

only if the record (1) clearly shows that the trial court misapplied the law to the

established facts, (2) does not reasonably support the ruling, or (3) shows that the trial

court acted arbitrarily or unreasonably.4 Moreover, under that exceptionally high

standard, the appellate court must defer to the trial court’s factual determinations if

they are supported by evidence but reviews only the trial court’s legal determinations

de novo. Id.; In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009).

       In particular, whether a pleaded claim is actually a health care liability claim

under Chapter 74 is a question of statutory construction reviewed de novo. Tex. W.

Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). As with all statutory

construction, “in construing a statute, [the court’s] aim is to determine and give effect

to the Legislature’s intent, and [it] begin[s] with the plain and common meaning of the

statute's words.” Id. Where a statute is unambiguous, “we adopt the interpretation

supported by its plain language unless such an interpretation would lead to absurd

results.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).

“We further consider statutes as a whole rather than their isolated provisions.” Id.


       4
         See Rio Grande Reg’l Hosp. v. Ayala, 2012 Tex. App. LEXIS 7175 (Tex. App. – Corpus
Christi Aug. 24, 2012, pet. filed); Wall v. Parkway Chevrolet, Inc., 176 S.W.3d 98, 104 (Tex.
App.—Houston [1st Dist.] 2004, no pet.).

                                             6
at 439 (emphasis supplied). In interpreting a statute, “we presume that the Legislature

chooses a statute’s language with care, including each word chosen for a purpose . .

. .” Id. “When possible, each sentence, phrase, clause and word is given effect, so that

the statute makes sense as a cohesive whole.” Meritor Automotive, Inc. v. Ruan

Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001). Thus, a court “do[es] not treat any

statutory language as surplusage, if possible.” Spradlin v. Jim Walter Homes, Inc., 34

S.W.3d 578, 580 (Tex. 2000). Access asks this court to violate all such principles of

statutory construction here.

II.   JAIMES’ CLAIM IS NOT A “HEALTH CARE LIABILITY CLAIM”
      UNDER TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13)

      A.     What Subsection 74.001(a)(13) Includes – and What It Does Not

      Contrary to the expansive interpretation Access asks this court to impose here,

by its express terms, Chapter 74 of the Texas Civil Practice and Remedies Code (also

known as the “Medical Liability Act”) does not apply to all claims against all health

care providers. Instead, it contains specific statutory limitations. Thus, the statute

defines a “health care liability claim” to mean “a cause of action against a health care

provider or physician for treatment, lack 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
                                           7
sounds in tort or contract.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13) (emphasis

supplied). By its own terms then, the statute applies only to claims sounding in

negligence. No such claim was brought here.

      Instead of addressing the whole statute and these fatal limitations, in the trial

court, Access took a single phrase from the statute – “lack of treatment”– pulled it out

of context, and sought dismissal under Chapter 74 for James’ alleged failure to

comply with Chapter 74’s expert report requirements. Although Jaimes stipulated that

Access itself is a “health care provider,” that is where any connection to Chapter 74

ended. Recognizing that obvious fact, the trial court properly denied Access’ Motion

to Dismiss. This Court should affirm.

      B.     By Its Express Terms, Chapter 74 Does Not Apply to Claims that Do
             Not Sound in Negligence

      Access devotes a scant two pages in its brief to the real contested issue here:

whether Jaimes has asserted any claim that sounds in negligence. She has not. That

alone is fatal to Access’ argument. Yet what Access omits in terms of analysis in those

two pages, it more than makes up for in contradiction. Indeed, its duplicity has fatally

undercut its own argument.

      Despite its quotation at page 8 of its brief reinforcing the notion that all of the

words in a statute should have meaning, Access has simply taken the single phrase

“lack of treatment” out of context and argued that that phrase, in a vacuum, means that

                                           8
Chapter 74 applies to Jaimes’ claims alleging that she did not get services for which

she paid. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). It does not.

       What Access conveniently ignores is the rest of the sentence in which that

phrase is found. The term “lack of treatment” is immediately followed by “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.” Id. This

sentence has long been interpreted to mean that a “health care liability claim” under

Chapter 74 must involve a “claimed departure from accepted standards” of care or

services, that is, it must sound in negligence. Thus, in Diversicare Gen. Partner, Inc.

v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005), the Court explained with regard to an

identical predecessor statute:5

       5
          Before its codification in the Texas Civil Practices and Remedies Code, Chapter 74 was
part of the Medical Liability and Insurance Improvement Act passed by the Texas Legislature in
1977 as Article 4590i of the Texas Revised Civil Statutes (“Article 4590i”). Ecke, Joseph R.,
Medical Professionals and the DTPA; STATE BAR OF TEXAS JOURNAL OF CONSUMER AND
COMMERCIAL LAW, Vol. 14, No. 3 (Summer 2011). The language of Article 4590i section
1.03(a)(4) (defining “health care liability claim”) was re-codified in the Civil Practice and Remedies
Code without substantial modification. The Medical Liability and Insurance Improvement Act
provided, in relevant part:

       Sec. 1.03. (a) In this part:

       [***]

       (4) ‘Health care liability claim’ means a cause of action against a health care
       provider or physician for treatment, lack of treatment, or other claimed departure
       from accepted standards of medical care or health care or safety which proximately
       results in injury to or death of the patient, whether the patient's claim or cause of
       action sounds in tort or contract.

                                                  9
       A cause of action against a health care provider is a health care liability
       claim under the MLIIA if it is based on a claimed departure from an
       accepted standard of medical care, health care, or safety of the patient,
       whether the action sounds in tort or contract. 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.6

       Other provisions within Chapter 74 support this limited definition of “health

care liability claim” as being one which involves a “claimed departure from accepted

standards” of care or services, that is, a claim sounding in negligence. Indeed, Access

cites one in its brief:      In its brief, Access asserts that “[t]he Act also specifically

states that the DTPA does not apply to health care liability claims.” Appellant’s Brief

at 9. TEX. CIV. PRAC. & REM. CODE § 74.004(a). A quick review of the relevant

statute, however, reveals that Access is incorrect if not intentionally misleading in

making that argument. Instead, TEX. CIV. PRAC. & REM. CODE § 74.004 bars

negligence claims against health care providers under Sections 17.41-17.63 of the

Texas Business and Commerce Code (hereinafter referred to as the “Texas Deceptive



Act of Aug. 29, 1977, 65th Leg., ch. 817, 1977 Tex. Gen. Laws 2039, repealed by Acts 2003, 78th
Leg., ch. 204, § 10.01, eff. Sept. 1, 2003. Section 1.03(a), Medical Liability and Insurance
Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp.1995).
       6
         Id., citing TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 1.03(a)(2), (4); MacGregor Med. Assoc.
v. Campbell, 985 S.W.2d 38, 41 (Tex.1998); Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995);
Gormley v. Stover, 907 S.W.2d 448, 449 (Tex.1995); Mulligan v. Beverly Enters.-Tex., Inc., 954
S.W.2d 881, 884 (Tex. App.– Houston [14th Dist.] 1997, no pet.); Waters ex rel. Walton v. Del-Ky,
Inc., 844 S.W.2d 250, 258-59 (Tex. App.–Dallas 1992, no writ); Shaw v. BMW Healthcare, Inc., 100
S.W.3d 8, 15 (Tex. App.– Tyler 2002, pet. denied).

                                                10
Trade Practices - Consumer Protection Act” or the “DTPA”)7 involving personal

injuries but not other types of claims. It provides:

       Sec. 74.004. EXCEPTION FROM CERTAIN LAWS.

       (a) Notwithstanding any other law, Sections 17.41-17.63, Business &
       Commerce Code, do not apply to physicians or health care providers
       with respect to claims for damages for personal injury or death resulting,
       or alleged to have resulted, from negligence8 on the part of any
       physician or health care provider.

TEX. CIV. PRAC. & REM. CODE § 74.004(a). Subsection 74.004(a) then not only

reinforces the conclusion that Chapter 74 and Subsection 74.001(a)(13) encompass

only negligence claims, but it makes clear that the provision does not exclude Jaimes’

claims here.

       C. Jaimes Does not Assert a Claim Sounding in Negligence

       Without any analysis,9 Access has simply ignored the requirement that any lack



       7
           The Business and Commerce Code provision states:

                Sec. 17.41.   SHORT TITLE. This subchapter may be cited as the
                Deceptive Trade Practices-Consumer Protection Act.

TEX. BUS. & COM. CODE ANN. § 17.41 (West 2002).
       8
        “Negligence” is defined in the State Bar of Texas 2012 edition of Texas Pattern Jury
Charges as: “Failure to use ordinary care, that is, failing to do that which a person of ordinary
prudence would have done under the same or similar circumstances or doing that which a person
of ordinary prudence would not have done under the same or similar circumstances.”
       9
       And it is too late for it to try to do so in its Reply brief when Jaimes will have no
opportunity to respond.

                                               11
of treatment represent a departure from acceptable standards of care, that is, that it

involve some medical negligence. This court does not have that luxury. It must apply

the proper test here: whether Jaimes’ 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.” See Diversicare, 185

S.W.3d at 848. That test is not even arguably met here. As an initial matter, Access

admits that “Jaimes’ claim is essentially a breach of contract claim.” Appellant’s

Brief at 9. It cannot now contradict that admission in is Reply Brief.

      Moreover, there is nothing about agreeing to provide a service then refusing to

do so for purely commercial and economic reasons that has anything to do with, let

alone that is “inseparable” from, the rendition of medical services here. It is

something any vendor could do. Indeed, to hold otherwise would be to construe the

definition of “health care liability claim” in TEX. CIV. PRAC. & REM. CODE §

74.001(a)(13) as any claim against a health care provider which involves any

treatment or any lack of treatment – without consideration for whether such treatment

or lack of treatment is a claimed departure from accepted standards of care. Such an

expansive interpretation would result in the inclusion of all claims against health care

providers, without exception, inasmuch as any claim against a health care provider

could be construed as one involving treatment or the lack thereof.


                                          12
      Nothing about Walden v. Jeffery, 907 S.W.2d 446 (Tex.1995), which Access

cites at page 8-9 of its brief, changes this conclusion. Access argues that the Walden

court “held that claims arising from alleged misrepresentations related to dental work

amount to a health care liability claim.” Appellant’s Brief at 8. It did not.

      As an initial matter, the Walden opinion does not even purport to analyze

whether or not the claims asserted by the Walden plaintiff constituted a “health care

liability claim” as that term is defined by TEX. CIV. PRAC. & REM. CODE §

74.001(a)(13), and the phrase “health care liability claim” is not found within that

opinion. Instead, the opinion analyzed whether or not the plaintiff’s claims involved

claims of “negligence” under Section 12.01(a) [which was the precursor to the above-

cited TEX. CIV. PRAC. & REM. CODE § 74.004(a)] to the old Medical Liability and

Insurance Improvement Act. Walden, 907 S.W.2d at 448. That statute, like Ch. 74

today, specifically applied only to negligence claims.10

      Moreover, Access admits in its brief that, “In Walden, the plaintiff sued her

dentist for failing to provide dentures that fit, as he had promised.” Appellant’s Brief

at 8-9 (emphasis added); Walden, 907 S.W.2d at 448. It is apparent even from

Access’ description of the facts underlying the Walden case that it is distinguishable



      10
           See TEX. REV. CIV. STAT. ANN. art. 4590i, § 12.01(a) (Vernon Supp.1995) and supra note
7.

                                                13
from this case because the Walden plaintiff complained of the “fit” of the dentures,

which necessarily concerned an issue of the health care provider’s negligence – i.e.,

departure from accepted standards of medical care or health care, and the act or

omission complained of was an inseparable part of the rendition of medical services.

As the court in Walden explained:

             There can be no DTPA claim against a physician for damages for
             personal injury or death if the damages result, or are alleged to
             result, from the physician’s negligence; however, if the alleged
             DTPA claim is not based on the physician's breach of the
             accepted standard of medical care, section 12.01(a) does not
             preclude suit for violation of the DTPA. Thus, the underlying
             nature of the claim determines whether section 12.01(a) prevents
             suit for violation of the DTPA. Claims that a physician or health
             care provider was negligent may not be recast as DTPA actions to
             avoid the standards set forth in the Medical Liability and
             Insurance Improvement Act.11

             In Sorokolit, a patient alleged that her physician represented that
             the result of breast augmentation surgery would look like a photo
             she selected. The Court held that this allegation did not
             necessarily involve the assertion that the physician had failed to
             meet the applicable standard of care and was therefore negligent.
             In the present case, by contrast, the allegation that Walden
             provided ill-fitting dentures cannot be anything other than that
             he was negligent. Jeffery has simply recast her negligence claim
             as a DTPA claim. Section 12.01(a), as construed in Sorokolit,
             precludes this. Gormley v. Stover, 907 S.W.2d 448 (Tex.1995)
             (per curiam).

Walden, 907 S.W.2d at 447-48 (emphasis added).


      11
           907 S.W.2d at 447 (citing Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994)).

                                                14
      In the instant case, Jaimes does not complain of the health care provider’s

improper (negligent) removal of her braces, nor does she complain about the final

result of the orthodontia treatment (e.g., whether or not her teeth were properly

straightened), because the braces removal for which Jaimes paid never occurred.

Rather, Jaimes complains of Access’ complete refusal for non-medical reasons to

provide a pre-purchased service.       Jaimes’ allegations against Access include

allegations that Access acted intentionally and knowingly. For these reasons, Jaimes’

allegations against Access cannot possible be construed to constitute negligence or

involve a claimed departure from the standards of care. Thus, there can be no

argument that her claims fall within Chapter 74 even if the DTPA claim in Walden

might have.

      Although the appellate court in Walden did not consider directly the statutory

definition of “health care liability claim”, the analysis applied by the Walden court is

consistent with the Texas Supreme Court’s analysis of the “health care liability claim”

definition as addressed in the Diversicare opinion, inasmuch as the facts contemplated

in the Walden case would likely call for the “necessity of expert testimony from a

medical or health care professional to prove a claim” – i.e., an expert opinion

concerning whether the troublesome “fit” of the dentures was indeed a departure from

the accepted standard of care -- which the Texas Supreme Court recognized “may also


                                          15
be an important factor in determining whether a cause of action is an inseparable part

of the rendition of medical or health care services”. See Diversicare, 185 S.W.3d at

848. In the instant case, there is no expert testimony from a medical or health care

professional necessary to prove Jaimes’ claim – i.e., that her braces were not removed

or that the braces should have been removed by Appellant/Defendant. Jaimes has not

asserted a claim which calls into question the manner in which the braces were

removed, nor does she complain about the final results of the orthodontic work; rather,

she has asserted a claim that the braces were not removed even though she had paid

for such service.

       In the instant case, Jaimes has not asserted any claims based on negligence or

departure from accepted standards of care, nor upon failure of professional skill or

complaints about professional opinion;12 rather, Jaimes’ claims concern Appellant’s


       12
          The Texas Deceptive Trade Practices - Consumer Protection Act – the statute upon which
Jaimes’ claim is based – contains language which further clarifies that the DTPA is not applicable
to medical negligence claims, inasmuch as the statute expressly does not apply to claims “based on
the rendering of a professional service, the essence of which is the providing of advice, judgment,
opinion, or similar professional skill”. More specifically:

       Sec. 17.49 (c) Nothing in this subchapter shall apply to a claim for damages based
       on the rendering of a professional service, the essence of which is the providing of
       advice, judgment, opinion, or similar professional skill. This exemption does not
       apply to:
       (1)     an express misrepresentation of a material fact that cannot be characterized
       as advice, judgment, or opinion;
       (2)     a failure to disclose information in violation of Section 17.46(b)(24);
       (3)     an unconscionable action or course of action that cannot be characterized as
       advice, judgment, or opinion;

                                                16
deliberate and intentional failure to perform the orthodontic services for which she had

fully paid.    The dispute between Jaimes and Appellant/Defendant is grounded in

Jaimes’     pre-payment        of   $4,000.00        to   Appellant/Defendant         based     on

Appellant/Defendant’s representation that Jaimes would receive "full braces (upper

and lower)", including “complete services.” Put another way: if Jaimes had not

already prepaid for the removal of the braces, she would not have cause for complaint

based on Access’ failure to remove the braces.

       To be sure, notwithstanding Chapter 74 of the Texas Civil Practice and

Remedies Code and its predecessor statute (Section 4590i of the Medical Liability and

Insurance Improvement Act), Texas courts have upheld the viability of claims against

health care providers based upon misrepresentations, breach of warranty, and DTPA

violations. For example, the El Paso Court of Appeals examined the common law

claims of a plaintiff based on breach of an express warranty, against a physician who




       (4)   breach of an express warranty that cannot be characterized as advice,
       judgment, or opinion; or
       (5)   a violation of Section 17.46(b)(26).

TEX. BUS. & COM. CODE ANN. § 17.49 (c). Of course, Jaimes’ claims do not constitute claims based
on the providing of advice, judgment, opinion, or similar professional skill, but rather, the health
care provider’s failure to remove her braces, which was a service for which she had prepaid. 1 CR
16-22.


                                                17
had represented that the plaintiff would experience particular results from liposuction

surgery:

      Here, Ms. Mills presented more than a scintilla of probative evidence to
      support her common law claim for breach of an express warranty. The
      evidence from Ms. Mills' deposition testimony concerning Dr. Pate's
      remarks, the promised results, and injuries she suffered raises genuine
      issues of material fact as to each challenged element of Ms. Mills' breach
      of express warranty claim with respect to the first surgery, for which she
      paid Dr. Pate to perform. While Dr. Pate's representations about the
      quality or characteristics of the services he sold to Ms. Mills were, of
      course, related to their patient-client relationship, these representations
      are not inseparable from her negligence claims against him and
      consequently, they do not require a determination as to whether Dr.
      Pate failed to meet the accepted standard of medical care for cosmetic
      surgery. Thus, despite Dr. Pate's assertions, Ms. Mills' breach of
      warranty claim is not an improper attempt to recast her informed
      consent claim to avoid requirements of the Act. Rather, there is some
      evidence that Dr. Pate's particular representations were actionable as
      an express warranty claim in that his representations did not conform
      to the character and quality of the services promised, they formed the
      basis of the parties' bargain for the first surgery, and injury resulted
      to Ms. Mills. See Southwestern Bell Tel. Co.v. FDP Corp., 811 S.W.2d
      572, 576-77 & n. 3 (Tex.1991)(noting elements of a breach of warranty
      claim).

Mills v. Pate, 225 S.W.3d 277, 290 (Tex. App.—El Paso 2006, no pet.) (emphasis

added). In the instant case, Access represented to Jaimes that it would provide “full

braces (upper and lower),” including “complete services,” to Jaimes, but failed to do

so, even though Jaimes had paid in full for such services.

      In a virtually identical case, the San Antonio Court of Appeals affirmed in part

a decision allowing the DTPA claims of a mother who had pre-paid a portion of costs

                                          18
associated with her daughter’s braces before the dentist subsequently refused to

complete the orthodontic treatment until further payment was received:

      Perez relied to her detriment on Froemming's representations regarding
      the cost of the braces. At the very least, Froemming clearly violated
      section 17.46(b)(11), which prohibits making false or misleading
      statements of fact concerning the reasons for, existence of, or amount of
      price reductions. See TEX. BUS. & COM. CODE ANN. § 17.46(b)(11). By
      making special payment arrangements in the contract wherein Perez was
      obligated to pay $1,250, Froemming led her to believe that once that
      amount of money was paid, full orthodontic services would be provided
      to her daughter. Instead, after Perez paid approximately $1,550,
      Froemming suspended service until an additional payment of $1,344 was
      tendered. Melinda was left with brackets on her teeth that were not
      removed before her graduation or prom as anticipated and as discussed
      with Dr. Froemming. Furthermore, Melinda's teeth were left to revert to
      their pre-orthodontic condition, and she will have to once again begin
      treatment with a new orthodontist.

Froemming v. Perez, No. 04-05-00514-CV, 2006 WL 704479, *9, 14-16 (Tex.

App.—San Antonio Mar. 22, 2006, no pet.) (mem. op.) (finding sufficient evidence

of $7,000 in economic damages based on consumer's lay testimony of $3,500 paid to

defendant orthodontist and estimated $3,500 to remedy defendant's DTPA violations;

also, finding that orthodontist acted intentionally).

      In the instant cause of action, Jaimes did not resort to “artful pleading” (as

alleged by Appellant/Defendant at Appellant’s Brief at 5) in her petition in bringing

claims against Access under the Texas Deceptive Trade Practices - Consumer

Protection Act. Jaimes’ claims are based on allegations of Access’ knowing and


                                          19
intentional – not negligent – conduct in violation of the Texas Deceptive Trade

Practices - Consumer Protection Act. Jaimes’ claims are based on Access’ knowing

and intentional inducement for Jaimes to prepay for full services associated with upper

and lower braces, and Access’ subsequent knowing and intentional failure to remove

the braces for which Jaimes had fully pre-paid.

       Because Jaimes’ claims do not constitute a “health care liability claim,” there

was no requirement that Jaimes provide an expert report.,13 For that reason, there was

no basis for dismissal of Jaimes’ claims. The trial court’s denial of Access’ Motion

to Dismiss should be affirmed.

III.   THE DTPA ENCOMPASSES JAIMES’ CLAIMS

       Although not relevant to Appellant/Defendant’s argument that Jaimes’ claim

is a “health care liability claim”, Access has asserted that a “simple breach of contract

claim does not give rise to liability under the DTPA,” citing Crawford v. Ace Sign,

Inc., 917 S.W.2d 12, 14-15 (Tex. 1996). Appellant’s Brief at 9-10. However, as set

forth in Jaimes’ petition, Jaimes’ claims are more than Appellant’s simplistic

presentation of “she entered into an agreement . . . that she performed by paying and

. . . Access breached the agreement by failing to take off the braces.” 1 CR 16-22;


       13
          Furthermore, Jaimes was not required to give written notice of claim or authorization
because her claim is not a “health care liability claim”. TEX. CIV. PRAC. & REM. CODE § 74.051(a)
and TEX. CIV. PRAC. & REM. CODE § 74.052(a).

                                               20
Appellant’s Brief at 9. Rather, Jaimes’ claims are grounded in Access’ knowing and

intentional conduct in inducing Jaimes to pay $4,000.00 for full braces services, then

subsequently knowingly and intentionally failing to remove the braces.

                 CONCLUSION AND PRAYER FOR RELIEF

      For the reasons stated, Miriam Jaimes respectfully requests that the Court affirm

the trial court’s January 21, 2015 order and award her costs and such other relief as

to which the Court may deem her entitled.

                                       Respectfully submitted,

                                       THE J.L. WATSON LAW FIRM, P.C.

                                       By:
                                              J. Lynn Watson
                                              Texas State Bar No. 20761510

                                       9442 N. Capital of Texas Hwy.
                                       Plaza 1, Suite 500
                                       Austin, TX 78759
                                       Telephone: (512) 343-4526
                                       Telecopier: (512) 582-2953
                                       email: lwatson@jlw-law.com

Collyn A. Peddie
Texas State Bar No. 15707300
LAW OFFICES OF COLLYN PEDDIE
440 Louisiana Street, Suite 900
Houston, Texas 77002-4205
Telephone: (713) 236-7783
Telecopier: (713) 236-7783
email: cp@collynpeddie.com
                                       Counsel for Appellee

                                         21
                            RULE 9.4(I) CERTIFICATE

       In compliance with Texas Rules of Appellate Procedure 9.4(I), I certify that the
number of words in this brief, excluding those matters listed in Rule 9.4(i)(l), is 5,381,
as calculated by the word processing program used by Appellee’s counsel.



                                  J. Lynn Watson



                           CERTIFICATE OF SERVICE

      The undersigned certifies that this document has been served on the following
counsel of record in compliance with Texas Rules of Civil Procedure and of Appellate
Procedure on this 24th day of March, 2015.

Robert Anderton                                 Jon M. Smith
State Bar No. 00795223                          State Bar No. 18630750
Mark J. Hanna                                   3305 Northland Drive
State Bar No. 08919500                          Suite 500
900 Congress Avenue, Suite 250                  Austin, TX 78731
Austin, TX 78701                                Telephone: (512) 371-1006
Telephone: (512) 477-6200                       Telecopier: (512) 476-6685
Telecopier: (512) 477-1188                      email: jon@jonmichaelsmith.com
email: mhanna@markjhanna.com




                                  J. Lynn Watson




                                           22
