                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00460-CV


WENDY KRITZER                                                       APPELLANT

                                         V.

SCOTT E. KASDEN, M.D. AND                                           APPELLEES
SCOTT E. KASDEN, M.D., P.A.


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          FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                   I. Introduction

      In two issues, Appellant Wendy Kritzer appeals the trial court’s decision to

dismiss her breach of contract claim. We reverse in part and remand in part.




      1
       See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      Kritzer hired Appellees Scott E. Kasden, M.D. and Dr. Scott E. Kasden,

M.D., P.A. (collectively Dr. Kasden) to perform breast augmentation surgery and

other pre- and post-operative medical services.        Kritzer paid for the surgery,

which was completed in August 2007. However, she had some issues healing

after the surgery and saw other physicians due to Dr. Kasden’s alleged failure to

provide proper care.

      Kritzer subsequently sued Dr. Kasden for negligence and breach of

contract under the Texas Medical Liability Act (TMLA) and served an expert

report.2 Dr. Kasden filed special exceptions to Kritzer’s breach of contract claim

and a motion for summary judgment on this claim, but he did not secure a ruling

on either. He also moved to dismiss Kritzer’s breach of contract claim, which the

trial court granted. The trial court entered a final judgment in favor of Dr. Kasden


      2
       Section 74.001(13) of the civil practice and remedies code 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
      acceptable 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 Ann. § 74.001(13) (West 2011 & Supp. 2012)
(emphasis added); see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d
842, 848 (Tex. 2005) (citing Walden v. Jeffrey, 907 S.W.2d 446, 448 (Tex. 1995),
for the proposition that breach of contract claim for ill-fitting dentures is a health
care liability claim).


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based on the jury’s verdict after a trial on the negligence claim. Kritzer now

appeals the dismissal of her breach of contract claim.

                                   III. Dismissal

       In her first issue, Kritzer asserts that the trial court erred by granting Dr.

Kasden’s motion to dismiss her breach of contract claim “in the absence of any

proper motion to dismiss and in the absence of any legal authority to support the

dismissal.”   That is, she complains that such a procedural device was not

available to him and that because the trial court did not dismiss her claim for

want of prosecution, by granting summary judgment, or by finding that she failed

to comply with the requirements of the TMLA, the dismissal was improper.

Kritzer is correct.

       Generally, there is no procedural mechanism in the Texas Rules of Civil

Procedure for a motion to dismiss “although courts and litigants often act as if

there is.”     Alex Wilson Albright, Texas Courts A Survey 20 (2011–2012).

Likewise, there is no Texas equivalent to a federal rule 12(b)(6) dismissal for

“failure to state a claim upon which relief can be granted.”3 See Fed. R. Civ. P.

12(b)(6); see also Tex. S. Univ. v. Rodriguez, No. 14-10-01079-CV, 2011 WL

2150238, at *5 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (mem. op.)

(“Although the Federal Rules of Civil Procedure provide for a motion to dismiss


       3
       The rules of civil procedure allow a trial court to dismiss a case under
certain circumstances, such as for want of prosecution under rule 165(a). See
Tex. R. Civ. P. 165(a). This case, however, is not within that orbit.


                                          3
for failure to state a claim upon which relief can be granted, no similar provision

is included in the Texas Rules of Civil Procedure.”). And while defendants in

medical malpractice cases are allowed by statute to have the claimant’s claim

dismissed for failure to timely serve an expert report, see Tex. Civ. Prac. & Rem.

Code Ann. § 74.351(b) (West 2011), Dr. Kasden’s “motion to dismiss” here does

not touch on the expert report issue for its basis. Rather, in his motion, Dr.

Kasden argues that a breach of contract cause of action is not available to

Kritzer.4


       4
         In his motion to dismiss, his motion for summary judgment, and his
special exceptions, Dr. Kasden argued, as he does on appeal, that Kritzer’s
claims against him were health care liability claims under the TMLA, which he
asserted “does not allow for claims of breach of contract related to the provision
of medical care.” But see Pena ex rel De Los Santos v. Mariner Health Care
Inc., No. CC-09-62, 2010 WL 2671571, at *2 (S.D. Tex. July 1, 2010) (classifying
plaintiff’s breach of contract claim against her nursing home as a health care
liability claim under TMLA before finding that the limitations period for that claim
had expired).

       Kritzer never claimed that her breach of contract claim was not a health
care liability claim, and she filed an expert report in compliance with TMLA for her
breach of contract and negligence claims. See, e.g., Ramchandani v. Jimenez,
314 S.W.3d 148, 149–50, 152–53 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (concluding that breach of contract claim was a health care liability claim
under the TMLA for which an expert report was required); see also Murphy v.
Russell, 167 S.W.3d 835, 838 (Tex. 2005) (noting that in enacting the TMLA, the
legislature intended for health care liability claims to be scrutinized by an expert
before the suit can proceed and for the expert report to be a “threshold over
which a claimant must proceed to continue a lawsuit”); Hunsucker v. Fustok, 238
S.W.3d 421, 429 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (stating that
Murphy “clarified that health care liability claims and claims under some other
theory, such as the DTPA or breach of contract, are not mutually exclusive;
meaning that claims may be both”). Kritzer sought damages for medical
expenses, physical pain and suffering, mental anguish and emotional distress,
physical disability and disfiguration, and lost wages for her negligence claim; she

                                         4
      The procedural vehicles available to Dr. Kasden were the special

exception procedure described in rules of civil procedure 90 and 91 or a motion

for summary judgment under rule 166a, depending on the nature of his

complaint. See, e.g., Rodriguez, 2011 WL 2150238, at *5 (“Under the Texas

Rules of Civil Procedure, the proper way for a defendant to urge that a plaintiff

has failed to plead a cause of action is by special exceptions.”).5

      Dr. Kasden’s basic assertion in his motion to dismiss is that there is no

breach of contract claim allowed under the TMLA. This is akin to asserting that a

cause of action or element of damage is not recognized in Texas, and “[s]pecial

exceptions are appropriate to challenge a plaintiff’s failure to state a cause of

action.” Parker v. Barefield, 206 S.W.3d 119, 120 (Tex. 2006); see Tex. R. Civ.

P. 91. “But once the trial court sustains the special exceptions, if the defect is

curable, it must allow the pleader an opportunity to amend.” Parker, 206 S.W.3d

at 120 (emphasis added); Zeid v. Pearce, 953 S.W.2d 368, 369 (Tex. App.—El

Paso 1997, no writ) (affirming dismissal based on special exceptions in

veterinary malpractice suit because plaintiffs did not plead for damages that were

recoverable in Texas for pain and suffering or mental anguish for loss of a pet).



sought damages “equal to the amount [she] was charged” by and that she had
paid to Dr. Kasden—basically, a refund—and attorney’s fees for her breach of
contract claim.
      5
       As noted in our factual recitation above, Dr. Kasden filed special
exceptions to the breach of contract claim and a motion for summary judgment
on the breach of contract claim, but he did not secure a ruling on either.


                                         5
But cf. Medlen v. Strickland, 353 S.W.3d 576, 580 (Tex. App.—Fort Worth 2011,

pet. granted) (“Because of the special position pets hold in their family, we see

no reason why existing law should not be interpreted to allow recovery in the loss

of a pet at least to the same extent as any other personal property.”). “[O]nly

after a party has been given an opportunity to amend after special exceptions

have been sustained may the case be dismissed for failure to state a cause of

action.” Tex. Dep’t of Corr. v. Herring, 513 S.W.2d 6, 10 (Tex. 1974) (emphasis

added); Rodriguez, 2011 WL 2150238, at *5–6.6

      Considering the foregoing, we sustain part of Kritzer’s first issue and hold

that the trial court could not grant Dr. Kasden’s motion to dismiss in that it was

not a procedural vehicle available to Dr. Kasden when urging that a breach of

contract action did not exist under the TMLA and that the trial court’s error

prevented Kritzer from properly presenting her contract claim on appeal on the

merits. See Tex. R. App. P. 44.1(a)(2). We need not reach Kritzer’s remaining

arguments. See Tex. R. App. P. 47.1.




      6
        In Herring, a Texas Tort Claims Act case involving negligence, the
supreme court held that a motion for summary judgment could not take the place
of a special exception to circumvent the special exception procedure’s protective
features, and it remanded a case to the trial court, stating that if the Department
filed a special exception, and the trial court sustained that special exception, and
then Herring still failed to state a cause of action, “then the case may properly be
dismissed.” 513 S.W.2d at 10.


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                                 IV. Conclusion

      Having sustained the dispositive portion of Kritzer’s first issue, we reverse

only the portion of the trial court’s judgment dismissing Kritzer’s breach of

contract claim, and we remand that claim to the trial court for further proceedings

consistent with this opinion.




                                                   BOB MCCOY
                                                   JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DELIVERED: October 4, 2012




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