Appellant’s Reply Brief – Page i

NO. 03-15-00081-CV

____________________________________________________________

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AT AUSTIN, TEXAS

____________________________________________________________

ACCESS ORTHODONTICS OF EAST 7TH STREET, P.A.

Appellant

v.

MIRIAM JAIMES

Appellee

____________________________________________________________

On Appeal from the 126th Judicial District Court

Of Travis County, Texas

The Honorable Amy Clark Meachum Presiding

____________________________________________________________

APPELLANT, ACCESS ORTHODONTICS OF EAST 7TH STREET, P.A.’S, 

REPLY BRIEF

____________________________________________________________

Robert M. Anderton

State Bar No. 00795223

Mark J. Hanna

State Bar No. 08919500

900 Congress Avenue, Suite 250

Austin, Texas 78701

Telephone:(512) 477-6200

Facsimile: (512) 477-1188

mhanna@markjhanna.com

ACCEPTED

03-15-00081-CV

4843584

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/10/2015 12:43:45 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/10/2015 12:43:45 PM JEFFREY D. KYLE Clerk
Appellant’s Reply Brief – Page ii

Jon M. Smith

State Bar No. 18630750

3305 Northland Drive

Suite 500

Austin, Texas 78731

Telephone: (512) 371-1006

Facsimile: (512) 476-6685

jon@jonmichaelsmith.com
Appellant’s Reply Brief – Page iii

IDENTITY OF PARTIES AND COUNSEL

Appellant: Access Orthodontics of East 7th Street, 

P.A.

Appellant’s Counsel: Robert M. Anderton

State Bar No. 00795223

Mark J. Hanna

State Bar No. 08919500

900 Congress Avenue, Suite 250

Austin, Texas 78701

Telephone:(512) 477-6200

Facsimile: (512) 477-1188

mhanna@markjhanna.com

Jon M. Smith

State Bar No. 18630750

3305 Northland Drive

Suite 500

Austin, Texas 78731

Telephone: (512) 371-1006

Facsimile: (512) 476-6685

jon@jonmichaelsmith.com

Appellee: Miriam Jaimes

Appellee’s Counsel: J. Lynn Watson

The J.L. Watson Law Firm, P.C.

State Bar No. 20761510

9442 N. Capital of Texas Hwy.

Plaza 1, Suite 500

Austin, Texas 78759

Telephone: (512) 343-4526

Facsimile: (512) 582-2953
Appellant’s Reply Brief – Page iv

REFERENCE TO THE PARTIES

Appellant will refer to Appellant, Access Orthodontics of East 7th

Street, P.A. as “Access” and Appellee, Miriam Jaimes, as “Jaimes.” 

REFERENCE TO THE RECORD

Reference Meaning

C.R. Clerk’s Record at page ___

R.R. Reporter’s Record at page ___: line ___
Appellant’s Reply Brief – Page v

TABLE OF CONTENTS

 PAGE

IDENTITY OF PARTIES AND COUNSEL.................................................iii

REFERENCE TO THE PARTIES ......................................................iv

REFERENCE TO THE RECORD .........................................................iv

TABLE OF CONTENTS....................................................................v

INDEX OF AUTHORITIES ................................................................vi

CONCLUSION .................................................................................8

PRAYER .........................................................................................8

CERTIFICATE OF COMPLIANCE.......................................................10

CERTIFICATE OF SERVICE .............................................................11
Appellant’s Reply Brief – Page vi

INDEX OF AUTHORITIES

CASES PAGE

Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex. App.—Dallas 2005, no 

writ)...............................................................................................................7

Earle v. Ratliff, 998 S.W.2d 882, 89 (Tex. 

1999).............................................................................................................7

Froemming v. Perez, No. 04-05—00514-CV, 2006 WL 704479 (Tex. 

App.—San Antonio Mar. 22, 2006, no pet.)..................................................3

Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 

1995).............................................................................................................7

Hunsucker v. Fustok, 238 S.W.3d 421, 428 (Tex. App.—Houston [1st Dist.] 

2007, no 

writ)...............................................................................................................7

Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006)(per 

curiam)..........................................................................................................3

Lopez v. Osuna, No. 04-14-00310-CV, 2014 Tex. App. LEXIS 12777, Tex. 

App.—San Antonio 2014, no writ)................................................................4

MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 40-41 (Tex. 

1998).............................................................................................................7

Mills v. Pate, 225 S.W.3d 277, 290 (Tex. App.—El Paso 2006, no 

pet.)...............................................................................................................3

Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994)...............................7

Stockton v. Offenbach, 336 S.W.3d 610, 611 (Tex. 

2011).............................................................................................................2

Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 177 (Tex. 

2012).............................................................................................................3
Appellant’s Reply Brief – Page 1

NO. 03-15-00081-CV

____________________________________________________________

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AT AUSTIN, TEXAS

____________________________________________________________

ACCESS ORTHODONTICS OF EAST 7TH STREET, P.A.

Appellant

v.

MIRIAM JAIMES

Appellee

____________________________________________________________

On Appeal from the 126th Judicial District Court

Of Travis County, Texas

The Honorable Amy Clark Meachum Presiding

____________________________________________________________

APPELLANT, ACCESS ORTHODONTICS OF EAST 7TH STREET, P.A.’S, 

REPLY BRIEF

____________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellant, Access Orthodontics of East 7th Street, P.A., files this reply 

brief and would show as follows:

INTRODUCTION

The purpose of this brief is to rebut two specific portions of Appellee’s 
Appellant’s Reply Brief – Page 2

brief: (1) Its discussion of the standard of review to clarify that the standard 

of review in this case is de novo; and (2) To distinguish this case from the 

line of cases cited by appellee that have allowed patients to pursue DTPA 

claims against healthcare providers outside the parameters of the Texas 

Medical Liability Act.

Standard of Review

Both parties referred to both the abuse of discretion standard of 

review and the de novo standard of review in their respective briefs. This 

matter bears clarification because in this case the only applicable standard 

of review is de novo.

In the section of her brief devoted to the proper standard of review in 

this case Appellee discusses both the abuse of discretion standard and the 

de novo standard. Appellee cites the case of Stockton v. Offenbach, 336 

S.W.3d 610, 611 (Tex. 2011) for the proposition that, “A court of appeals 

reviews a decision to deny a motion to dismiss under Section 74.351 under 

an abuse of discretion standard.” But that is not what the Stockton opinion 

actually says. On the page referenced by Appellee, the Stockton court 

states that, “Under an abuse of discretion standard, the appellate court 

defers to the trial court’s factual determinations if they are supported by 
Appellant’s Reply Brief – Page 3

evidence, but reviews the trial court’s legal determinations de novo.” Id. 

In the instant case the trial court did not make any factual 

determinations. The motion to dismiss was decided on the pleadings. 

Therefore, as later accurately stated by Appellee the standard of review for 

determining whether a pleaded claim is a health care liability claim is de 

novo. Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 177 (Tex. 

2012); see also Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006)(per 

curiam). Because the only inquiry in this case is whether Appellee’s claim 

is a health care liability claim, the only standard of review in this case is de 

novo. 

Distinguishing this case from Mills and Froemming

Appellee compares this case to the Mills and Froemming cases in 

attempting to make the point that her claims should be considered to be 

outside the TMLA and she should be allowed to pursue them as claims 

under the Deceptive Trade Practices Act1. But both of those cases are 

distinguishable from the instant case.

 

1 Mills v. Pate, 225 S.W.3d 277, 290 (Tex. App.—El Paso 2006, no pet.); and Froemming v. 

Perez, No. 04-05-00514-CV, 2006 WL 704479 (Tex. App.—San Antonio Mar. 22, 2006, no 

pet.) 
Appellant’s Reply Brief – Page 4

The unreported Froemming opinion is most simple to distinguish and 

is discussed first. Froemming is, quite simply, a case in which the 

applicability or lack thereof of the TMLA is not an issue. The Froemming 

case does involve a dispute between a dentist and patient over the failure 

to complete a course of orthodontics. Froemming at 9. However, the 

dentist in Froemming failed to answer the patient’s original petition and a 

default judgment was taken. Id. The case was taken up on a restricted 

appeal and no mention is made in the entire opinion about the applicability 

of the TMLA or whether the patient was making a healthcare liability claim 

as that term is defined by the TMLA. For those reasons the Froemming

case is inapplicable to this case. 

A case based on failure to provide medical services for which 

payment had been made which is more applicable to this case is Lopez v. 

Osuna, No. 04-14-00310-CV, 2014 Tex. App. LEXIS 12777, Tex. App.—

San Antonio 2014, no writ). In Lopez, the plaintiff, a pregnant mother, 

prepaid for birthing services to be provided by a birthing clinic and midwife. 

Lopez at 11. Osuna alleged that when she went to the clinic believing she 

was in labor she was told to leave and come back a couple of days later. 

Id. Shortly thereafter, she began to feel more intense labor pains and had 

her husband rush her to the clinic. Lopez at 12. She delivered the baby on 
Appellant’s Reply Brief – Page 5

the way to the clinic and when she arrived the midwife refused to provide 

any services to her. Id. Lopez sued the midwife and the clinic making 

various claims under the DTPA. Lopez at 12. She did not provide an 

expert report pursuant to Chapter 74. Id. The midwife filed a motion to 

dismiss based on this failure but the trial court denied the motion finding 

that Osuna’s claims were not health care liability claims. Id.

The court of appeals determined that Osuna’s claims were health 

care liability claims. Lopez at 16. In making that determination the court 

considered Osuna’s claims, including the fact that she had entered into a 

contract by which she would pay Lopez a certain amount prior to the 

delivery and she would receive care and attention as promised. Id. As well 

as her assertion that “Lopez provided none of the medical assistance for 

which she had been paid.” Id. The court stated that, “At the core of 

Osuna’s claims is provision of health care during pregnancy.” Lopez at 19. 

As a result, the court held that the alleged wrongful acts are inseparable 

from Lopez’s rendition of health care. Id. This court should reach the same 

result in the instant case. 

The Mills case is based on a very narrow set of facts that Texas 

courts have consistently distinguished and which are not applicable her. In 

Mills, the patient, decided to have liposuction and went to the doctor, Pate.
Appellant’s Reply Brief – Page 6

Mills, 225 S.W.3d at 280. Dr. Pate told Mills that after liposuction she 

would have no bulges or saddlebags. Id. Dr. Pate performed the 

liposuction and Ms. Mills complained about sagging skin and other 

problems. Mills, 225 S.W.3d at 281. Dr. Pate performed a second 

procedure – a thigh lift – and Mills was again disappointed because she did 

not look like Dr. Pate said she would. Mills, 225 S.W.3d at 282. Mills sued 

Pate for medical malpractice based on failure to obtain informed consent 

and later added a breach of express warranty claim. Mills, 225 S.W.3d at 

283. Dr. Pate filed a motion for summary judgment based on limitations

and the applicability of the TMLA and it was granted on all counts. Mills, 

225 S.W.3d at 283-84. 

In analyzing Mills’ breach of warranty claim the court stated that 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. Mills, 225 S.W.3d at 289. The 

court went on to recount that Mills “alleged that Dr. Pate made the following 

representations to her about the quality or characteristics of his services...”

and then went into detail about each of Dr. Pate’s representations. Id. It 

was Mills’ reliance on these representations of the outcome of the 

procedure that the court relied upon in deciding that Mills could go forward 
Appellant’s Reply Brief – Page 7

with a breach of warranty claim. Mills, 225 S.W.3d at 290. There are no 

such allegations of representations or promises by Access of a particular 

result of the dental treatment at issue in this case. Therefore there is no 

basis for a claim by the Appellee separate and apart from one that is based 

on a departure from the standard of care based on the failure to provide 

treatment, in this case the removal of the braces. Therefore, the Mills case 

is distinguishable and Appellee’s DTPA claim should not be allowed to 

proceed. 

Texas courts have consistently distinguished the Sorokolit opinion, on 

which Mills heavily relies2. For example, in Hunsucker v. Fustok, 238 

S.W.3d 421, 428 (Tex. App.—Houston [1st Dist.] 2007, no writ), the court of 

appeals distinguished the facts of that case in which the patient claimed 

that the doctor breached an agreement that the surgery would be 

performed a particular way from the Mills and Sorokolit fact patterns in 

which a doctor promised a particular result. See also MacGregor Med. 

Ass’n v. Campbell, 985 S.W.2d 38, 40-41 (Tex. 1998); Gormley v. Stover, 

907 S.W.2d 448, 450 (Tex. 1995); Earle v. Ratliff, 998 S.W.2d 882, 89 

(Tex. 1999); and Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex. App.—Dallas 

2005, no writ).

 

2 Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). 
Appellant’s Reply Brief – Page 8

It is clear based on a review of this line of decisions that the Mills 

case and its predecessor, Sorokolit, are narrowly limited to the specific 

facts of those cases in which health care providers promised particular 

results from medical procedures, separate and apart from the standard of 

care applicable to the particular procedure. Therefore, Mills is not 

applicable to this case and should not be considered. 

CONCLUSION

The Trial Court erred when it denied the motion to dismiss. 

Therefore, this court should reverse the trial court’s order and render 

judgment that the case is dismissed with prejudice to its refiling and that 

Access is awarded attorneys fees in the amount of $5,345.00.

 

PRAYER

FOR THE FOREGOING REASONS, Appellant prays that this Court 

reverse the trial court’s order denying the motion to dismiss, and render 

judgment that Appellee’s claims are dismissed with prejudice and order her 

to pay attorney’s fees in the amount of $5,345.00. 
Appellant’s Reply Brief – Page 9

Respectfully submitted,

LAW OFFICES OF HANNA & 

ANDERTON

By: __/s/_Jon Smith________________

Robert M. Anderton

State Bar No. 00795223

Mark J. Hanna

State Bar No. 08919500

900 Congress Avenue, Suite 250

Austin, Texas 78701

Telephone:(512) 477-6200

Facsimile: (512) 477-1188

mhanna@markjhanna.com

Jon M. Smith

State Bar No. 18630750

3305 Northland Drive

Suite 500

Austin, Texas 78731

Telephone: (512) 371-1006

Facsimile: (512) 476-6685

jon@jonmichaelsmith.com

ATTORNEYS FOR APPELLANT
Appellant’s Reply Brief – Page 10

CERTIFICATE OF COMPLIANCE

I, Jon Michael Smith, do hereby certify that the Appellant’s Brief 

contains 1,494 words, according to the word count of the computer 

program used to prepare it, in compliance with Texas Rule of Appellate 

Procedure 9.4(i)(3).

____/s/_Jon Smith_________________

Jon Michael Smith
Appellant’s Reply Brief – Page 11

CERTIFICATE OF SERVICE

I, Jon Michael Smith, do hereby certify that a true and correct copy of 

the foregoing document was delivered to all attorneys of record as listed 

below via fax on April 10, 2015.

J. Lynn Watson Via Fax: (512) 582-2953

The J.L. Watson Law Firm, P.C.

State Bar No. 20761510

9442 N. Capital of Texas Hwy.

Plaza 1, Suite 500

Austin, Texas 78759

____/s/_Jon Smith___________

Jon Michael Smith