Court of Appeals of Texas, Second District, Fort Worth
DRS. CALABRIA-ELLIS, P.C. D/B/A GATEWAY DENTAL AND DR. ANDRE ELLIS, INDIVIDUALLY APPELLANTS
AMANDA HO AND RACHEL HO APPELLEES
THE 67TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
MEIER, SUDDERTH, and KERR, JJ.
MEMORANDUM OPINION 
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
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.
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
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.
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
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