Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
On appeal from the County Court at Law Number 5 of Nueces County, Texas.
Before Justices Garza, Benavides, and Perkes
GINAM. BENAVIDES, Justice
This is a veterinary malpractice case. By three issues, which we consolidate into one, appellant, Jena Gonzalez, appeals the trial court's granting of appellee South Texas Veterinary Associates, Inc.'s ("STVA") no-evidence and traditional motions for summary judgment. We reverse and remand.
Gonzalez filed suit against STVA following the death of her cat, "Kitty Kat, " who was euthanized in February 2011 allegedly due to a medical condition known as vaccine-associated sarcoma.
In October 2003, Gonzalez acquired Kitty Kat and did not know the cat's medical or vaccination history. Gonzalez described Kitty Kat as an "indoor/outdoor" cat. On two separate occasions, in December 2008 and March 2010, Gonzalez took Kitty Kat to STVA for treatment by David Shaffer, D.V.M. According to Gonzalez, Dr. Shaffer vaccinated Kitty Kat, including a vaccination known as "adjuvanted feline leukemia vaccine." On October 11, 2010, Gonzalez returned to STVA and presented Kitty Kat, who had developed a golf-ball-sized mass that contained a quarter-sized ulceration which was draining "matter" on Kitty Kat's right rear leg. According to Gonzalez, Dr. Shaffer diagnosed the cat with an infection, prescribed an antibiotic for treatment, and instructed Gonzalez to return if Kitty Kat's symptoms did not improve.
Gonzalez alleges that Kitty Kat's symptoms did not improve, so Gonzalez took Kitty Kat to another veterinary clinic, Baldwin and Crosstown Animal Clinic,  on October 16, 2010. At the clinic, veterinarian Dr. Piatt  diagnosed Kitty Kat with vaccine-associated sarcoma. On October 18, 2010, another veterinarian, Dr. Guzeldere, examined Kitty Kat, aspirated Kitty Kat's lesion, and concurred in the diagnosis of vaccine-associated sarcoma. Following these diagnoses, Kitty Kat underwent two surgeries, including the amputation of the right hind limb, and chemotherapy. Gonzalez states that Kitty Kat was euthanized on February 14, 2011 as a result of complications from the vaccine-associated sarcoma.
Gonzalez, acting pro se, initially filed suit in Nueces County small claims court against STVA and alleged that STVA: (1) failed to inform her of the risk of vaccine-associated sarcoma; (2) failed to adhere to feline vaccination protocols; and (3) failed to properly diagnose vaccine-associated sarcoma. Gonzalez sought damages in the amount of $6, 858.52, plus court costs. The justice court granted STVA's motion for directed verdict and ordered a take-nothing judgment. Gonzalez, however, filed a de novo appeal to the county court. See Tex. Civ. Prac. & Rem. Code Ann. § 51.001 (West 2008).
Discovery included the oral depositions of Dr. Shaffer, fellow STVA veterinarian Darrell Ferris, D.V.M, STVA retained testifying expert Alan Garett, D.V.M., and Gonzalez's retained testifying expert, Robert "Bob" Rogers, D.V.M. STVA eventually filed no-evidence and traditional motions for summary judgment on all of Gonzalez's claims, as well as a traditional motion for summary judgment on its counterclaim for sanctions against Gonzalez for continued prosecution and bringing "groundless" claims in bad faith or for the purpose of harassment. See Tex. R. Civ. P. 13; 215.2(b). Gonzalez and STVA filed their respective responses, replies, and sur-replies to address the pending motions. Gonzalez's first amended petition added claims for breach of contract and negligent misrepresentation. STVA filed a motion to dismiss these new claims.
The trial court made the following relevant rulings:
(1) STVA's motion to dismiss Gonzalez's breach of contract and negligent misrepresentation claims was granted;
(2) STVA's counterclaim and motion for sanctions against Gonzalez was denied; and
(3) STVA's no-evidence and traditional motions for summary ...