Court of Appeals of Texas, Third District, Austin
THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO.
C-1-CV-16-005061, THE HONORABLE ERIC SHEPPERD, JUDGE
Chief Justice Rose, Justices Triana and Smith
a veterinary-malpractice dispute. Madeleine Connor appeals
from an order granting summary judgment to appellees Dr.
James R. Holcomb and Hill Country Animal Hospital, a
professional association (Hill Country). We will affirm.
2014, Connor took her golden retriever, Owen, to Hill Country
for treatment of an ear infection. A veterinarian (not Dr.
Holcomb) prescribed medication to treat the infection, and
Connor filled the prescription at Hill Country's in-house
pharmacy. The medication did not clear up Owen's symptoms
completely, and Connor brought Owen in for another
appointment. Dr. Holcomb examined Owen and told Connor that
the infection persisted because she had not regularly applied
the medication. The infection did not resolve even after
regular applications, and Dr. Holcomb took a culture of the
ear to determine the cause of the infection. The culture
showed the ear was infected by a bacterium not curable by
Owen's current medication, and Dr. Holcomb prescribed a
different one. Connor bought the new medication, again filled
by Hill Country's in-house pharmacy, and applied it as
directed. Owen's symptoms initially improved but then
significantly worsened. Connor called Dr. Holcomb, and he
told her that she must be administering the medication
incorrectly and to bring Owen in for another appointment.
Dissatisfied with this opinion, Connor consulted several
other veterinarians. A veterinarian at Gulf Coast Veterinary
Specialists diagnosed Owen with a yeast infection and
prescribed medication that quickly eliminated all of
Owen's symptoms. The veterinarian explained to Connor
that the second medication prescribed by Dr. Holcomb had
actually cured the original infection but created a
"favorable environment" for a yeast infection.
subsequently sued Dr. Holcomb and Hill Country over
Owen's treatment. She alleged that Dr. Holcomb was
negligent for failing to recognize and treat the yeast
infection and that Hill Country, acting through Dr. Holcomb,
misrepresented the effectiveness of the medications from its
pharmacy in violation of the Deceptive Trade Practices Act
(DTPA). See Tex. Bus. & Com. Code §
17.46(b)(5) (providing that "representing that goods or
services have characteristics, ingredients, uses, benefits,
or quantities which they do not have" is deceptive trade
practice). More specifically, Dr. Holcomb allegedly
represented that the drugs he prescribed "would cure the
ear infection" while knowing the medication would be
ineffective or "ma[ke] the infection worse."
defendants filed a combined motion for summary judgment in
which Hill Country asserted a traditional ground and Dr.
Holcomb a no-evidence ground. See Tex. R. Civ. P.
166a(c), (i). Hill Country argued that the Veterinary
Licensing Act barred Connor's DTPA claim as a matter of
law. See Tex. Occ. Code § 801.507
("Nonapplicability of Deceptive Trade Practices-Consumer
Protection Act"). Dr. Holcomb argued there was no
evidence for any of the essential elements of Connor's
negligence claim. Connor filed a verified response and
attached an excerpt from Owen's chart documenting his
treatment at Gulf Coast Veterinary Specialists. The district
court granted the motion without stating its reasons. This
review a court's ruling on a motion for summary judgment
de novo. Scripps NP Operating, LLC v. Carter, 573
S.W.3d 781, 790 (Tex. 2019). A traditional motion for summary
judgment requires the moving party to show that no genuine
issue of material fact exists and that it is entitled to
judgment as a matter of law. Tex.R.Civ.P. 166a(c). To defeat
a no-evidence motion, the nonmoving party must produce
evidence raising a genuine issue of material fact as to the
challenged elements of its claim. Id. R. 166a(i).
"A genuine issue of material fact exists if the evidence
'rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.'"
First United Pentecostal Church v. Parker, 514
S.W.3d 214, 220 (Tex. 2017) (quoting Merrell Dow Pharm.,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). In
reviewing either type of summary judgment motion, we view the
evidence in the light most favorable to the nonmoving party
and indulge every reasonable inference and resolve all doubts
against the motion. Carter, 573 S.W.3d at 790.
argues in three issues that she raised a genuine issue of
material fact on her claim against Dr. Holcomb and that Hill
Country is not exempt from her DTPA claim as matter of law.
first address whether Connor raised a genuine issue of
material fact on the essential elements of her negligence
claim against Dr. Holcomb. The elements of a negligence claim
are "the existence of a legal duty, a breach of that
duty, and damages proximately caused by the breach."
Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex.
2017). The parties dispute whether Connor must use expert
testimony to raise a fact issue on these elements.
"Expert testimony is necessary when the alleged
negligence is of such a nature as not to be within the
experience of the layman." FFE Transp. Servs. v.
Fulgham, 154 S.W.3d 84, 90 (Tex. 2004) (quoting
Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982)). We
do not reach this question because Connor did not carry her
burden even if expert testimony is not required. Her only
summary judgment evidence is a page from Owen's chart at
Gulf Coast Veterinary Services.That page contains notes from a
veterinarian reflecting that Owen's ear was improving but
that "some yeast have come into play in the ear"
and that "[t]his is not unusual" after treatment.
This evidence does not raise a fact issue regarding the act
or failure to act by which Dr. Holcomb breached his duty to
Connor. It also does not provide evidence of damages
resulting from that alleged breach. The district court
accordingly did not err by granting no-evidence summary
judgment to Dr. Holcomb.
second issue, Connor argues the district court erred if it
concluded that Section 801.507 of the Veterinary Licensing
Act barred her DTPA claim against Hill Country. See
Tex. Occ. Code § 801.507 (providing that DTPA "does
not apply to a claim against a veterinarian for damages
alleged to have resulted from veterinary malpractice or
negligence"). This raises a question of statutory
construction, which is an issue of law that we review de
novo. Paxton v. City of Dallas, 509 S.W.3d 247, 256
(Tex. 2017). Our goal when construing a statute is to
ascertain and give effect to the Legislature's intent as
expressed in the statutory language. Id. We apply
the plain meaning of the statute's words unless the