                                                                                 ACCEPTED
                                                                            03-15-00081-CV
                                                                                   4843584
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                      4/10/2015 12:43:45 PM
                                                                           JEFFREY D. KYLE
                                                                                     CLERK
                      NO. 03-15-00081-CV
____________________________________________________________
                                                     FILED IN
                                              3rd COURT OF APPEALS
                  IN THE COURT OF APPEALS          AUSTIN, TEXAS
              FOR THE THIRD DISTRICT OF TEXAS4/10/2015 12:43:45 PM
                       AT AUSTIN, TEXAS           JEFFREY D. KYLE
                                                       Clerk
____________________________________________________________

          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
____________________________________________________________

APPELLANT, ACCESS ORTHODONTICS OF EAST 7TH 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


Appellant:                           Access Orthodontics of East 7th Street,
                                     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 7th

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 [1st 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 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
____________________________________________________________

APPELLANT, ACCESS ORTHODONTICS OF EAST 7TH STREET, P.A.’S,
                        REPLY BRIEF
____________________________________________________________



TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellant, Access Orthodontics of East 7th 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


Appellant’s Reply Brief – Page 1
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


Appellant’s Reply Brief – Page 2
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 Act1. But both of those cases are

distinguishable from the instant case.




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.)

Appellant’s Reply Brief – Page 3
      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


Appellant’s Reply Brief – Page 4
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.


Appellant’s Reply Brief – Page 5
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


Appellant’s Reply Brief – Page 6
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 [1st 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).


2
    Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994).

Appellant’s Reply Brief – Page 7
      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.




Appellant’s Reply Brief – Page 8
                                   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




Appellant’s Reply Brief – Page 9
                        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




Appellant’s Reply Brief – Page 10
                           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




Appellant’s Reply Brief – Page 11
