Opinion issued August 8, 2017




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-16-00412-CV
                         ———————————
                      LOVER COMPTON, Appellant

                                      V.

   LANCE JUE, D.D.S. AND LANCE JUE, D.D.S. D/B/A A BEAUTIFUL
               SMILE AT LAKE POINTE, Appellees


                  On Appeal from the 268th District Court
                         Fort Bend County, Texas
                   Trial Court Case No. 15-DCV-221609


                        MEMORANDUM OPINION

     Appellant, Lover Compton, challenges the trial court’s rendition of summary

judgment in favor of appellees, Lance Jue, D.D.S. and Lance Jue, D.D.S. doing
business as A Beautiful Smile at Lake Pointe1 (collectively, “Dr. Jue”), in her suit

against Dr. Jue for dental malpractice, negligence, breach of warranty, lack of

informed consent, medical battery, promissory estoppel, fraud, and violations of the

Texas Deceptive Trade Practices Act (“DTPA”).2 In two issues, Compton contends

that the trial court erred in granting Dr. Jue summary judgment.

      We affirm.

                                      Background

      In her original petition, Compton alleged that in February 2012, she sought

treatment from her dentist, Dr. Jue, to repair damaged teeth. He advised that she

needed tooth extractions and “full dental implants.”           After she underwent the

recommended dental surgery, she experienced extreme pain and discomfort in her

mouth. Four months later, at a follow-up appointment with Dr. Jue, Compton

reported her concerns to him. Subsequently, Dr. Jue removed bone spurs from

Compton’s mouth.

      In November 2012, Dr. Jue performed a second surgery on Compton, who

had still been experiencing pain, to replace her implants with upper and lower

dentures. Compton asserted that “[i]mmediately after her surgery,” Dr. Jue told her

that the dentures did not properly fit her mouth, and he recommended taking new



1
      Our style of the case is in accord with the trial court’s judgment.
2
      See TEX. BUS. & COM. CODE ANN. §§ 17.46, 17.50 (Vernon 2011).
                                             2
upper and lower dental impressions. Dr. Jue then informed Shatkin Lab that

although the wax impressions that he had originally made of Compton’s mouth were

accurate, the dentures it had made for her did not properly fit, and he would be

submitting new impressions. Dr. Jue then made new impressions for Compton’s

upper and lower dentures.

      On December 12, 2012, Dr. Jue surgically “implanted six mini implants in

[Compton’s] upper mouth and four mini implants in her lower mouth.” Afterwards,

Compton continued to experience pain and contracted an infection.

      On March 6, 2013, Compton visited Dr. Jonathan Penchas at Midtown

Dentistry for a new evaluation. Penchas diagnosed Compton with infected dental

implants, infected root tips, and ill-fitting dentures. Penchas removed Compton’s

dentures and implanted temporary dentures into Compton’s mouth while she waited

on her new dentures. In April 2013, Compton “underwent a fifth dental implant

surgery,” during which she suffered a cut tongue. The cut caused her “continuous

pain and discomfort for the following eight months.”

      In her dental malpractice claim, Compton alleged that Dr. Jue breached his

duty as a healthcare professional by twice placing improper dentures into her mouth.

She asserted that Dr. Jue’s breaches of the standard of care proximately caused her

to suffer severe physical, emotional, and economic injuries.




                                         3
      In her negligence claim, Compton alleged that Dr. Jue had a duty to exercise

ordinary care in the examination and repair of her teeth. He breached that duty by

failing to properly install dentures into her mouth and failing to inform her of the ill-

fitting dentures that he had installed. His negligent acts and omissions proximately

caused an infection in her mouth, a need for further surgery, and a cut on her tongue.

Compton asserted that she incurred lost wages and expenses for additional dental

examinations and surgeries.

      In her claim for breach of warranty, Compton alleged that Dr. Jue “held

himself out to . . . the general public as having expertise, knowledge, and skill in

dentistry, including . . . oral examinations and dental surgery.        Therefore, [he]

breached the warranty that any service work would be performed in a good and

workmanlike manner.”

      In her claim for lack of informed consent, Compton alleged that although she

had consented to the “surgical implantation of dentures formed from impressions of

her teeth,” Dr. Jue installed dentures from impressions of someone else’s teeth. She

asserted that he lacked her informed consent to perform such surgery.

      In her medical battery claim, Compton alleged that Dr. Jue, by performing the

complained of implant surgeries, “touched” her mouth in a manner that caused her

pain and suffering. She asserted that he lacked her consent to so touch her.




                                           4
      In her claim for promissory estoppel, Compton alleged that Dr. Jue made a

promise to perform dental services at an acceptable level of care when he examined

her teeth and recommended dental implants. And it was foreseeable that she would

rely on his promise to care for her properly as a medically licensed professional. She

asserted that she substantially relied to her detriment on Dr. Jue’s promise because

she suffered injuries and damages. And “injustice may be avoided only by legal

enforcement.”

      In her fraud claim, Compton alleged that Dr. Jue had falsely represented to

her that he had repaired her teeth, when in fact he had not properly repaired her teeth.

Rather, he had twice improperly repaired her teeth with implants. She further

asserted that Dr. Jue either knew that his representation was false or he made it

recklessly, without knowledge of its truth, and as a positive assertion of fact.

Further, his representation was material, in that it was important to her in deciding

to have the dental surgery performed, and a reasonable person would be induced to

rely on such representation and act on it in deciding to have further dental

evaluations and surgery.       She asserted that Dr. Jue made the complained-of

representation with the intent that she rely on it in agreeing to let him repair her teeth;

she actually and justifiably relied on his representation; and such reliance caused her

damages.




                                            5
      Finally, Compton alleged that Dr. Jue violated the DTPA by engaging in an

“unconscionable course of action, which, to [her] detriment, took advantage of her

lack of knowledge, ability, experience or capacity to a grossly unfair degree.”3

Further, Dr. Jue “knowingly made false or misleading statements of fact about the

need for parts, replacement, or repair service”4; represented that goods or services

had characteristics or qualities that they did not have,5 or were of a particular

standard, quality, or grade, or style or model, when they were of another6; and

represented that work or services had been “performed on, or parts replaced in, goods

when the work or services [was] not performed or the parts not replaced.”7

      Compton further alleged that she suffered mental anguish, anxiety related to

her mouth, and missed days of work. She sought actual and exemplary damages in

an amount of at least $200,000.00, but less than $1,000,000.00.

      Dr. Jue answered, generally denying the allegations and asserting various

affirmative defenses. He also filed a summary-judgment motion, arguing that he is

entitled to judgment as a matter of law on “[a]ll of [Compton’s] claims” because

they are all “based, in one way or another, on allegedly negligent dental services.”


3
      See id. §§ 17.45(5) (Vernon 2011), 17.50(a)(3).
4
      See id. § 17.46(b)(13).
5
      See id. § 17.46(b)(5).
6
      See id. § 17.46(b)(7).
7
      See id. § 17.46(b)(22).

                                           6
Further, “[b]ecause all of [her] asserted causes of action [are], at their core, health

care liability claims,” they are barred by the two-year limitations period governing

health care liability claims.8 The treatment about which Compton complained

occurred no later than December 17, 2012; limitations expired on December 17,

2014; and Compton did not file her lawsuit until March 3, 2015. Dr. Jue further

asserted that Compton had failed to provide the required medical authorization

necessary to toll limitations.9 And he attached to his motion a copy of Compton’s

petition, his own affidavit, and Compton’s notices of claims and authorization.

      In her response to Dr. Jue’s motion, Compton argued that she timely filed her

health care liability claims on March 3, 2015 because she did not discover her

injuries until March 6, 2013. She further argued that a genuine issue of material fact

precluded summary judgment because the reasonableness of when she discovered

her injury must be determined by the trial court. She did not attach any evidence to

her response.

      The trial court, without specifying the grounds, granted Dr. Jue’s

matter-of-law summary-judgment motion on all of Compton’s claims.

                                Standard of Review



8
      TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a) (Vernon 2011) (governing
      limitations for health care liability claims).
9
      See id. §§ 74.051(a), (c) (Vernon 2011), 74.052 (Vernon Supp. 2016) (governing
      tolling of limitations and medical authorization).
                                          7
      We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true

all evidence favorable to the non-movant, and we indulge every reasonable inference

and resolve any doubts in the non-movant’s favor. Valence Operating, 164 S.W.3d

at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary judgment without

specifying the grounds for granting the motion, we must uphold the trial court’s

judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power,

Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

      To prevail on a matter-of-law summary-judgment motion, the movant must

establish that no genuine issue of material fact exists and the trial court should grant

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a

defendant moves for a matter-of-law summary judgment, it must either: (1) disprove

at least one essential element of the plaintiff’s cause of action or (2) plead and

conclusively establish each essential element of an affirmative defense, thereby

defeating the plaintiff’s cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341

(Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Lujan

v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014,

no pet.). Once the movant meets its burden, the burden shifts to the non-movant to

                                           8
raise a genuine issue of material fact precluding summary judgment. See Siegler,

899 S.W.2d at 197; Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691

(Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine

issue of fact if reasonable and fair-minded factfinders could differ in their

conclusions in light of all of the summary-judgment evidence. Goodyear Tire &

Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

                                  Recasting Claims

      In her second issue, Compton argues that the trial court erred in granting Dr.

Jue summary judgment on her claims for violations of the DTPA, promissory

estoppel, lack of informed consent, medical battery, and negligence because they are

independent from her dental malpractice claim and were not impermissibly recast to

avoid the limitations period governing health care liability claims.

      Whether a claim is a health care liability claim is a question of law that is

reviewed de novo. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847

(Tex. 2005); Hunsucker v. Fustok, 238 S.W.3d 421, 425 (Tex. App.—Houston [1st

Dist.] 2007, no pet.). A health care liability claim is defined 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. . . .



                                           9
TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(13) (Vernon Supp. 2016). “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.” Diversicare, 185 S.W.3d at 848.

      It is well settled that a health care liability claim cannot be recast as another

cause of action to avoid the requirements governing health care liability claims. Id.

at 851; see also TEX. CIV. PRAC. & REM. CODE ANN. ch. 74 (Vernon 2011 & Supp.

2016) (governing health care liability claims); Hunsucker, 238 S.W.3d at 426 (“It is

well established that a claimant cannot escape the Legislature’s statutory scheme by

artful pleading.”). To determine whether a plaintiff has tried to recast a health care

liability claim as another cause of action, we examine the underlying nature of the

cause of action, rather than the manner in which it is pleaded. Yamada v. Friend,

335 S.W.3d 192, 197 (Tex. 2010); Diversicare, 185 S.W.3d at 847. We focus on

the essence of the claims and consider the alleged wrongful conduct and the duties

allegedly breached. Diversicare, 185 S.W.3d at 851; Tex. Cypress Creek Hosp., L.P.

v. Hickman, 329 S.W.3d 209, 214 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied).

      Dr. Jue, in his summary-judgment motion, directed the trial court to a copy of

Compton’s petition and argued that “[a]ll of [Compton’s] theories of recovery other

than negligence constitute attempts to recast a health care liability claim as a

                                          10
different cause of action, simply calling it by a different name, in order to avoid the

application of the two year statute of limitations applicable to health care liability

claims.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a) (Vernon 2011). He

asserted that a “claim for ill-fitting dentures is a health[]care liability claim governed

by [chapter 74].” See Walden v. Jeffrey, 907 S.W.2d 446, 448 (Tex. 1995).

      In Walden, a patient sued her dentist for breach of implied warranty and

violations of the DTPA, alleging that the dentist had failed to provide properly fitting

dentures. Id. at 447. The patient did not allege that the dentist was marketing

dentures apart from his profession of dentistry. Id. at 448. Rather, she alleged that

the dentist, “in his professional capacity,” provided her with dentures in the course

of his consultation with her and “services for dentures.” Id. The supreme court held

that the patient’s claims for ill-fitting dentures constituted health care liability claims

because providing dentures is inseparable from the provision of professional dental

services. Id. at 448.

      In Gormley v. Stover, the supreme court upheld a trial court’s grant of

summary judgment based on a limitations defense, holding that a patient’s claim that

her dentist had misrepresented his ability to perform a recommended surgical

procedure and the likely results of such a procedure constituted a health care liability

claim. 907 S.W.2d 448, 450 (Tex. 1995). The court reasoned that the essence of the




                                            11
alleged misrepresentations was that the dentist’s selection of procedures and

performance deviated from the established standard of care. Id.

      Here, the essence of Compton’s DTPA claims is that Dr. Jue, in the course of

providing dental services to her in his professional capacity as a dentist, failed to

provide her with properly fitting dentures and failed to recognize or failed to inform

her of the ill-fitting dentures. Compton’s DTPA claims constitute health care

liability claims because Dr. Jue’s provision of dentures to her is inseparable from his

provision of dental services to her. See Walden, 907 S.W.2d at 448. Further, the

essence of Compton’s claims is that Dr. Jue’s selection of procedures and

performance deviated from the established standard of care. See Gormley, 907

S.W.2d at 450.

      In her promissory estoppel claim, Compton alleged that Dr. Jue “made a

promise to perform dental services at an acceptable level of care” and she relied to

her detriment on his promise to “care for her properly as a medically licensed

professional.” Compton’s promissory estoppel claim constitutes a health care

liability claim because the essence of her claim is an alleged departure from an

accepted standard of medical care. See Diversicare, 185 S.W.3d at 848.

      In her claims for lack of informed consent and medical battery, Compton

again alleged that she was harmed by Dr. Jue’s performance of dental implant

surgery. Compton’s claims constitute health care liability claims because she

                                          12
complains about the provision of professional dental services. See Walden, 907

S.W.2d at 448.

      In her negligence claim, Compton merely restated her allegation in her

medical malpractice claim that Dr. Jue breached his duties as a healthcare

professional in failing to properly place dentures in her mouth.

      In sum, the essence of each of Compton’s claims for violations of the DTPA,

promissory estoppel, lack of informed consent, medical battery, and negligence is

that Dr. Jue failed to properly perform dental surgery, properly fit her mouth with

dentures, and recognize an ill fit and inform her accordingly. See Walden, 907

S.W.2d at 448; see also Diversicare, 185 S.W.3d at 851; Hickman, 329 S.W.3d at

214. Because Compton complains of acts and omissions that either constitute a

departure from the standard of care or an inseparable part of Dr. Jue’s performance

of professional services as a dentist, we conclude that her claims are health care

liability claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(13); Diversicare,

185 S.W.3d at 848. Thus, Compton’s claims are subject to the limitations period

governing health care liability claims. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 74.001, 74.251; Diversicare, 185 S.W.3d at 848. And she does not challenge the

trial court’s summary judgment insofar as it was granted on Dr. Jue’s limitations




                                         13
defense.10 Accordingly, we hold that the trial court did not err in granting Dr. Jue

summary judgment on Compton’s claims for violations of the DTPA, promissory

estoppel, lack of informed consent, medical battery, and negligence.

      We overrule Compton’s second issue.

                           Fraud and Breach of Warranty

      In a portion of her first issue, Compton argues that the trial court erred in

granting Dr. Jue summary judgment on her fraud and breach-of-warranty claims

because he “does not address them” in his summary-judgment motion.

      The purpose of a summary judgment is to provide a “method of summarily

terminating a case when it clearly appears that only a question of law is involved and

that there is no genuine issue of fact.” G&H Towing Co. v. Magee, 347 S.W.3d 293,

296–97 (Tex. 2011) (internal quotations omitted). Summary judgments may be

granted, however, only upon grounds expressly presented in the motion. See id.;

McConnell v. Southside ISD, 858 S.W.2d 337, 341 (Tex. 1993); see also TEX. R.

CIV. P. 166a(c) (motion for summary judgment must “state the specific grounds

therefor”). Generally, granting a summary judgment on a claim not addressed in the

summary-judgment motion or granting more relief than a party requests constitutes



10
      Compton, in her appellant’s brief, does not complain that the trial court erred in
      granting Dr. Jue summary judgment on the ground that her health care liability
      claims are barred by limitations. Further, in her reply brief, she expressly states that
      Dr. Jue’s limitations defense is “not at issue in this appeal.”
                                             14
reversible error. See Magee, 347 S.W.3d at 297; Page v. Geller, 941 S.W.2d 101,

102 (Tex. 1997). A court of appeals “should treat such a summary judgment as any

other final judgment, considering all matters raised and reversing only those portions

of the judgment based on harmful error.” Magee, 347 S.W.3d at 298; see also

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002).

      There is, however, a limited exception to the rule that granting a summary

judgment on a claim not addressed in the summary-judgment motion constitutes

reversible error. Magee, 347 S.W.3d at 297. A summary judgment may be affirmed

where a summary-judgment motion omits one or more of multiple causes of action

if the omitted ground is “intertwined with, and precluded by, a ground addressed in

the motion.” Id.; see also Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476,

487–88 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (unaddressed claim mere

reiteration of claim on which movant had already shown itself entitled to summary

judgment); Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 435–36 (Tex. App.—

Houston [14th Dist.] 1999, no pet.) (summary judgment may be deemed to cover

additional causes of action under appropriate fact situations). “Although a trial court

errs in granting a summary judgment on a cause of action not expressly presented

by written motion, . . . the error is harmless when the omitted cause of action is

precluded as a matter of law by other grounds raised in the case.” Magee, 347

S.W.3d at 297–98 (citing Withrow v. State Farm Lloyds, 990 S.W.2d 432, 437–38

                                          15
(Tex. App.—Texarkana 1999, pet. denied) (affirming summary judgment on cause

of action not specifically addressed in movant’s motion where reversing summary

judgment would be meaningless because omitted cause of action precluded as matter

of law)); see also TEX. R. APP. P. 44.1(a).

      Although Dr. Jue, in his summary-judgment motion, did not specifically list

Compton’s fraud or breach-of-warranty claims, he argued that he was entitled to

summary judgment on “[a]ll of [Compton’s] claims” because they are all “based, in

one way or another, on allegedly negligent dental services.” He argued that

“[b]ecause all of [Compton’s] asserted causes of action are, at their core, health care

liability claims, they are all governed by . . . [section] 74.251(a) and, therefore, are

time barred.”    Again, Compton does not challenge the trial court’s summary

judgment in favor of Dr. Jue on his limitations defense.

      Compton’s fraud claim is based on her allegation that Dr. Jue misrepresented

“that her teeth had been repaired when, in fact, they were still damaged.” To prevail

on her claim, Compton would be required to challenge Dr. Jue’s professional

judgment and appropriate follow-up procedures as falling below the accepted

standard of medical care. See Diversicare, 185 S.W.3d at 847–48; see also Key v.

Viera, No. 01-07-00587-CV, 2009 WL 350602, at *7–8 (Tex. App.—Houston [1st

Dist.] Feb. 12, 2009, no pet.) (mem. op.) (fraud claims recast as health care liability

claims). Thus, her claim constitutes a health care liability claim.

                                          16
      In regard to her breach-of-warranty claim, Compton, in her petition, asserted

that Dr. Jue “held himself out” as having “expertise, knowledge and skill in

dentistry,” including “oral examinations and dental surgery,” and he “breached the

warranty that any service work would be performed in a good and workmanlike

manner,” pursuant to section 17.50(a)(2) of the DTPA. Compton’s claim constitutes

a health care liability claim because it is expressly predicated on an alleged departure

from the accepted standards of medical care. See Diversicare, 185 S.W.3d at 848;

Walden, 907 S.W.2d at 448.

      Although Compton argues that her fraud and breach-of-warranty claims are

not health care liability claims because “they do not require proof of negligence,”

we look to the underlying nature of her claims and are not bound by the form of

pleading when determining whether a cause of action constitutes a health care

liability claim under chapter 74. See Diversicare, 185 S.W.3d at 847; Key, 2009 WL

350602, at *8 (fraud and breach-of-warranty claims constituted health care liability

claims). In Walden, the plaintiff argued that the health care liability act did not apply

to her claim that her dentist had knowingly misrepresented that he would provide

her with properly fitting dentures because her claim was not “resulting, or alleged to

have resulted, from negligence.” 907 S.W.2d at 447. The court concluded that the

plaintiff’s allegation that the dentist had provided ill-fitting dentures “cannot be




                                           17
anything other than that he was negligent.” Id. at 447–48. It held that the plaintiff

had “simply recast her negligence claim as a DTPA claim.” Id. at 448.

      We conclude that Compton’s fraud and breach-of-warranty claims, like her

other claims discussed above, constitute health care liability claims. Thus, they are

subject to the limitations period governing health care liability claims. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 74.001, 74.251; Diversicare, 185 S.W.3d at 848.

Again, Compton does not challenge the trial court’s summary judgment in favor of

Dr. Jue on his limitations defense.

      Accordingly, we hold that the trial court did not err in granting Dr. Jue

summary judgment on Compton’s fraud and breach-of-warranty claims.

      We overrule the portion of Compton’s first issue in which she complains that

the trial court erred in granting summary judgment on her fraud and

breach-of-warranty claims.

                           Essential Elements of Claims

      In the remainder of her first issue, Compton argues that the trial court erred in

granting Dr. Jue summary judgment on all of her claims because he, in his summary-

judgment motion, failed to specifically address the essential elements of each of her

claims. Again, when a defendant moves for a matter-of-law summary judgment, he

must either: (1) disprove at least one essential element of the plaintiff’s cause of

action or (2) plead and conclusively establish each essential element of an

                                          18
affirmative defense, thereby defeating the plaintiff’s cause of action. See Cathey,

900 S.W.2d at 341; Siegler, 899 S.W.2d at 197; Lujan, 433 S.W.3d at 704. Here,

Dr. Jue moved for summary judgment on his affirmative defense of limitations, not

on any of the essential elements of Compton’s causes of action.

      We overrule the remainder of Compton’s first issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Higley, and Massengale.




                                        19
