       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                    NO. 03-19-00524-CV


                  Gentle Touch Dentistry and Vida Tahmoresi, Appellants

                                               v.

                              Diana Lynn Wolbrueck, Appellee




                FROM COUNTY COURT AT LAW NO. 1 OF BELL COUNTY
           NO. 89,169, THE HONORABLE JEANNE PARKER, JUDGE PRESIDING



                           MEMORANDUM OPINION


              Gentle Touch Dentistry and Vida Tahmoresi (collectively, “Gentle Touch

Dentistry”) appeal from the county court’s judgment affirming the trial court’s order denying

their motion to dismiss under the Texas Medical Liability Act (TMLA). See generally Tex. Civ.

Prac. & Rem. Code §§ 74.001–.507. The only issue on appeal is whether Diana Wolbrueck, the

plaintiff below, asserted a health care liability claim when she alleged that a dental hygienist

broke her retainer during a teeth-cleaning procedure at Gentle Touch Dentistry. Based on our

holding that Wolbrueck failed to rebut the presumption that her claim is a health care liability

claim for which a medical expert report was required, Wolbrueck’s suit is subject to mandatory

dismissal for failure to file an expert report. We therefore reverse the county court’s judgment

and render judgment dismissing Wolbrueck’s suit with prejudice.
                                           Background

               Wolbrueck sued Gentle Touch Dentistry in justice court for damage allegedly

done to her retainer during a teeth-cleaning procedure at Gentle Touch Dentistry. According to

Wolbrueck’s petition:


       I went to get my teeth cleaned and the hyg[i]enist broke my retainer wire in two
       places, with the scrap[]ing tool. I felt something sticking my tongue. She said I’ll
       push it down and just go to your orthodon[t]ist and have them glue it back. I
       made an appointment for the following day. They had to replace the wires. My
       insurance paid teeth cleaning cost me $180.00. I took the invoice to the den[t]ist
       office and asked to be re[i]mbursed. I received a call from the den[t]ist and she
       said they wouldn’t pay.


She asked for $180 in damages, plus $500 for pain and suffering and $116 in court costs. The

original petition to the justice court is the only pleading filed by Wolbrueck in the record.

               In its answer, Gentle Touch Dentistry generally denied Wolbrueck’s allegations

and asserted that her claim was a health care liability claim under the TMLA. See Tex. Civ.

Prac. & Rem. Code § 74.001(a)(13) (defining “health care liability claim”). Wolbrueck did not

respond to Gentle Touch Dentistry’s assertion or otherwise serve it with a medical expert report.

After the expiration of 120 days from the filing of its answer, Gentle Touch Dentistry moved to

dismiss Wolbrueck’s suit with prejudice. See id. §§ 74.351(a) (requiring claimant in “health care

liability claim” to serve defendant with expert report no later than 120 days after the date of

defendant’s original answer), .351(b)(2) (providing that, if claimant does not serve report within

specified period, the trial court must, on the defendant’s motion, dismiss the claim with

prejudice). Gentle Touch Dentistry stated in its motion that it did not seek attorney fees and

courts costs under the TMLA. See id. § 74.351(b)(2) (providing that, if claimant does not serve

report within specified period, the trial court must, on the defendant’s motion, award the

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defendant reasonable attorney fees).     Wolbrueck did not file a response to Gentle Touch

Dentistry’s motion to dismiss.

               The justice court denied the motion to dismiss, and Gentle Touch Dentistry filed

an interlocutory appeal to the county court. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(9)

(allowing for interlocutory appeal from order denying TMLA motion to dismiss); Tex. Gov.

Code § 26.042(e) (granting county court appellate jurisdiction over justice-court civil cases

where the amount in controversy exceeds $250). Wolbrueck did not file a response to Gentle

Touch Dentistry’s appeal to the county court. The county court affirmed the trial court’s order

on the grounds that Wolbrueck’s claim was not a health care liability claim. This appeal

ensued. 1

                                            Analysis

               On appeal, Gentle Touch Dentistry argues that the trial court erred in denying its

motion to dismiss because Wolbrueck has asserted a health care liability claim and did not serve

it with an expert report as required by the TMLA. Wolbrueck has not filed an appellee’s brief in

this Court.2


       1
            While this appeal was pending, Wolbrueck nonsuited her claim without prejudice.
However, the filing of a nonsuit does not extinguish a defendant’s motion for dismissal with
prejudice. See Crites v. Collins, 284 S.W.3d 839, 843 (Tex. 2009) (holding that TMLA motion
to dismiss with prejudice and for sanctions survives nonsuit regardless of whether movant brings
motion before or after nonsuit) (citing Villafani v. Trejo, 251 S.W.3d 466 , 470–71 (Tex. 2008));
Villifani, 251 S.W.3d at 470–71 (explaining that allowing defendants to seek dismissal with
prejudice deters meritless suits and removing option to appeal “after a nonsuit frustrates this
purpose; a claimant could simply nonsuit a meritless claim and later re-file the claim with
impunity”).
       2
          When an appellee fails to file a brief, the appellate court should conduct an independent
analysis of the merits of the appellant’s claim of error, limited to the arguments raised by the
appellant, to determine if there was error. Burns v. Rochon, 190 S.W.3d 263, 267 n. 1 (Tex.
App.—Houston [1st Dist.] 2006, no pet.); see also Spencer v. Gilbert, No. 03-09-00207-CV,
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               Whether Wolbrueck’s claim is a health care liability claim is a question of law

that we review de novo. Texas W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex.

2012). In determining whether Wolbrueck’s claim is a health care liability claim, we consider

the entire record, including the pleadings, motions and responses, and relevant evidence properly

admitted. Loaisiga v. Cerda, 379 S.W.3d, 248, 258 (Tex. 2012).

               The TMLA defines a health care liability claim as:


       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 sounds in tort or contract.


Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). In Loaisiga, the Texas Supreme Court held that

the TMLA creates a rebuttable presumption that a claim is a health care liability claim if it: (1) is

against a physician or health care provider and (2) “is based on facts implicating the defendant’s

conduct during the patient’s care, treatment, or confinement.” 379 S.W.3d at 252.

               In her claim against Gentle Touch Dentistry, Wolbrueck alleges that a hygienist

broke her retainer during a teeth-cleaning procedure. Dentists and their employees are “health

care providers” under the TMLA. See Tex. Civ. Prac. & Rem. Code § 74.001(12)(A)(ii), (B)(ii)

(defining “health care provider” to include dentists and their employees acting in the course and

scope of the employment or contractual relationship). The Texas Dental Practice Act requires

that dental hygienists be licensed to perform teeth-cleaning procedures. See Tex. Occ. Code



2010 WL 3064346, at *2 n.2 (Tex. App.—Austin Aug. 4, 2010, pet. dism’d w.o.j.) (noting that
“appellee’s outright failure to file a brief has no consequence set by rule except that failure to
controvert a statement of fact will lead to the statement of fact being taken as true”) (citing Tex.
R. Civ. P. 38.1(g)).
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§§ 256.052 (requiring license to practice dental hygiene), 262.002(a) (practicing dental hygiene

includes removing “accumulated matter, tartar, deposits, accretions, or stains” from teeth and

polishing teeth); see also 22 Tex. Admin. Code § 115.2(a) (State Board of Dental Examiners,

Extension of Duties of Auxiliary Personnel—Dental Hygiene) (authorizing licensed dental

hygienist to clean teeth). Thus, assuming her allegations are true, Wolbrueck’s claim is based on

facts implicating Gentle Touch Dentistry’s conduct during a patient’s care and treatment. As

such, Wolbrueck’s claim against Gentle Touch Dentistry is presumed to be a health care liability

claim. See Loaisiga, 379 S.W.3d at 252; Bueno v. Hernandez, 454 S.W.3d 178, 185 (Tex.

App.—San Antonio 2014, pet. denied) (applying presumption to assault claim where assault

occurred while she was receiving treatment at emergency room).

               The Loaisiga presumption is rebuttable because sometimes “the only possible

relationship between the conduct underlying a claim and the rendition of medical services or

healthcare [is] the healthcare setting (i.e., the physical location of the conduct in a health care

facility), the defendant’s status as a doctor or health care provider, or both.” 379 S.W.3d at 256.

But Wolbrueck did not rebut the Loaisiga presumption—she did not respond to Gentle Touch

Dentistry’s motion to dismiss or, in fact, file or offer anything to the courts below. See Milton v.

Nguyen, No. 14-16-00883-CV, 2017 WL 4017872, at *3 (Tex. App.—Houston [14th Dist.] Sep.

12, 2017, no pet.) (mem. op.) (noting that plaintiff has burden of rebutting Loaisiga

presumption). “In the absence of evidence to the contrary, a rebuttable presumption has the

force of a rule of law.” Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). Accordingly, we

hold that Wolbrueck failed to rebut the presumption that her claim is a health care liability claim

that is subject to section 74.351(a)’s expert-report requirements and, as a result, it was error for



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the trial court to deny Gentle Touch Dentistry’s motion to dismiss her claim for failure to timely

serve an expert report. See Tex. Civ. Prac. & Rem. Code § 74.351(b)(2).

                                          Conclusion

               Because Wolbrueck’s claim is presumptively a health care liability claim under

the TMLA and because she did not serve an expert report within the required timeline, her claim

must be dismissed. See id. Accordingly, we reverse the county court’s judgment and render

judgment dismissing Wolbrueck’s suit with prejudice. Because Gentle Touch Dentistry stated in

its motion to dismiss that it does not seek attorney fees or costs under the TMLA, there is no

basis for remand. See id. § 74.351(b)(1) (requiring award of attorney fees and costs “on the

motion” of health care provider).



                                             __________________________________________
                                             Jeff Rose, Chief Justice


Before Chief Justice Rose, Justices Baker and Triana

Reversed and Rendered

Filed: April 17, 2020




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