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Drs. Calabria-Ellis, P.C. v. Ho

Court of Appeals of Texas, Second District, Fort Worth

August 31, 2017

DRS. CALABRIA-ELLIS, P.C. D/B/A GATEWAY DENTAL AND DR. ANDRE ELLIS, INDIVIDUALLY APPELLANTS
v.
AMANDA HO AND RACHEL HO APPELLEES

         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 067-284752-16

          PANEL: MEIER, SUDDERTH, and KERR, JJ.

          MEMORANDUM OPINION [1]

          BILL MEIER JUSTICE

         I. Introduction

         Appellants Drs. Calabria-Ellis, P.C. d/b/a Gateway Dental and Dr. Andre Ellis, individually, appeal the trial court's interlocutory order denying their motion to dismiss under the Texas Medical Liability Act (TMLA). See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2016), § 74.351(a), (b) (West 2017). The lone issue is a familiar one: the often hazy question of whether a claim, though labeled otherwise, is a healthcare-liability claim subject to the TMLA's mandatory expert-report and dismissal provisions. Because we agree with Appellants that the promissory-estoppel claim alleged by Appellees Amanda and Rachel Ho is a healthcare-liability claim, we will reverse and remand.

         II. Background

         Appellees filed their original petition on April 6, 2016. They complained of experiencing pain, infection, and other mental and physical maladies after Appellants performed dental services for them. According to a different filing, Amanda's problems began after she visited Appellants in April 2014 to correct a food trap between two molars. Appellants filled a cavity and performed temporary and permanent crown procedures to address the persistent tooth pain that Amanda subsequently experienced, but she ultimately visited other dentists who, among other things, corrected the food-trap and crown procedures that Appellants had previously performed. After Appellants filled multiple cavities for Rachel in late 2013, she too experienced persistent tooth pain and had the cavities re-treated by other dentists.

         In addition to the allegations involving dental treatment, Appellees averred in paragraph twelve of their original petition that when they confronted Appellants with the problems they were experiencing, Dr. Ellis promised to reimburse them for the costs they had incurred to have the issues corrected by other dentists. Appellees presented Appellants with invoices documenting the dental work performed by other dentists, but Appellants failed to reimburse them.[2]

         Appellees alleged healthcare-liability claims against Appellants, averring that Appellants' negligence in performing the dental procedures proximately caused them damages. Appellees also alleged a claim for promissory estoppel. Premised upon the facts contained in paragraph twelve, Appellees alleged that Dr. Ellis promised to reimburse them for the costs they incurred to correct the procedures that Appellants had performed; that Appellants should have foreseen, and did foresee, that Appellees would rely on the promise; that Appellees did in fact substantially rely upon Dr. Ellis's promise; and that Appellees were injured because Appellants reneged on the promise to reimburse them.

         Appellees later nonsuited their "Malpractice and Negligence claims." In the notice of nonsuit, Appellees confirmed that their "claim for Promissory Estoppel against [Appellants] shall proceed without regard to this Notice."

         Soon after the nonsuit, Appellants filed a combined traditional and no-evidence motion for summary judgment and a motion to dismiss under the TMLA, arguing in part that Appellees' "claims" should be dismissed because Appellees failed to comply with the TMLA's applicable expert-report requirement. Appellees responded that they were not attempting to avoid the TMLA's expert- report requirement by improperly recasting their nonsuited medical-negligence claim as a promissory-estoppel claim-primarily because the claims' elements differed-and that evidence supported their contract-based promissory-estoppel claim. This is one exchange that took place at the hearing on Appellants' motion to dismiss:

The Court: You're saying that the agreement had nothing to do with the medical care other than he was just willing to pay? Is that . . . what you're basically saying? He made a promise to pay or help pay?
[Appellees' counsel]: Exactly. He made a promise to pay for my clients' expenses in connection with them seeking ...

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