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COURT OF APPEALS OF TEXAS

Williams v. Neutercorp (Unpublished)
TEXAS
1995 Tex. App. LEXIS 833 (Tex Ct. App. Apr. 20, 1995).

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Summary:  

Appellant sought review of the order from the County Court dismissing appellant's lawsuit after it sustained the special exception filed by appellee company, appellee animal hospital, and appellee veterinarian in appellant's suit which alleged negligence and violations of the Texas Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.50.  Appellant took her dog to be groomed at a store. The dog was injured when he fell from the grooming table. The groomer took the dog to appellee animal hospital, owned by appellee company. Appellee veterinarian x-rayed and examined the dog. Appellee veterinarian did not treat appellant's dog but instead recommended a specialist. Appellant filed suit against appellees alleging negligence and violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA), Tex. Bus. & Com. Code Ann. § 17.50. The lower court ordered appellant to remove the DTPA claim from her pleadings and to remove any claim for attorney fees. Appellant filed a fourth amended petition and again alleged DTPA violations and sought attorney fees. Appellees filed a motion to dismiss. The lower court granted the motion and dismissed appellant's petition with prejudice. Appellant sought review. The court affirmed the dismissal order.  The Veterinary Licensing Act, Tex. Rev. Civ. Stat. Ann. art. 8890, 18C, expressly provided that the DTPA did not apply in veterinary malpractice cases.  Thus, appellant was precluded from bringing a cause of action under the DTPA for appellees' malpractice or negligence.  The court affirmed the lower court's order dismissing appellant's suit against appellees because the lower court did not abuse its discretion by dismissing appellant's pleadings with prejudice, after the lower court sustained the special exception regarding the Deceptive Trade Practices-Consumer Protection Act, and after appellant refused to amend her pleading.



Judge JUSTICE DAVIE L. WILSON delivered the opinion of the court.


Opinion of the Court:

NOTICE:  PURSUANT TO RULE 90(i) OF THE TEXAS RULES OF APPELLATE PROCEDURE, UNPUBLISHED OPINIONS SHALL NOT BE CITED AS AUTHORITY BY COUNSEL OR BY A COURT.

 Appellant, Carlette Williams, appeals the trial court's dismissal of her lawsuit. Williams sued appellees, Neutercorp and Dr. Erin O'Toole, for damages from injuries sustained by her poodle, Happy. n1 The trial court dismissed the lawsuit after it sustained the special exceptions filed by appellees, and after Williams did not substantively replead. We affirm.

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    n1 Williams also filed suit against Petsmart, Inc. but settled with them before filing this appeal.

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 Factual Background

 On January 15, 1992, Williams took her dog, Happy, to be groomed at a Petsmart store, located in Fort Bend County. n2 Patty Pearson, a Petsmart employee, was grooming Happy when he fell from a grooming table and was injured. The Petsmart groomer took the dog to Pet Vet Animal Hospital, owned by Neutercorp. n3 O'Toole, a licensed veterinarian employed by Neutercorp, X-rayed and examined Happy. She concluded the dog had a fractured left foreleg and a broken right foreleg.

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    n2 The facts are taken from the pleadings filed by Williams.

    n3 Williams alleges that Happy had been taken to Pet Vet as a patient before, and Pet Vet had issued his tags. She alleges Pet Vet expressly told her that the facility was equipped for emergency care.

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 O'Toole contacted Williams about the dog's injuries. She told Williams she would hold Happy at the clinic until Williams arrived and they could discuss treatment. O'Toole did not treat Happy for his injuries. When Williams arrived at the clinic, she was told that O'Toole had left for lunch but that she could speak to an veterinarian assistant. Williams took Happy to a specialist on O'Toole's recommendation because O'Toole felt she could not properly treat the dog.

 Procedural Background

 In December 1992, Williams filed suit against Petsmart, Neutercorp, and O'Toole. In her original petition, Williams alleged that Neutercorp was negligent, grossly negligent, and had violated the Texas Deceptive Trade Practices - Consumer Protection Act (DTPA), Tex. Bus. & Com. Code Ann. 17.50 (Vernon 1987). Specifically, she alleged that the defendant (the petition does not specify which defendant, Neutercorp or O'Toole) did not provide appropriate medication, adequate safety measures, proper supervision, proper transportation of the injured dog, proper referral, adequate stabilization measures, or maintain the standard of care.

 On March 16, 1993, Neutercorp and O'Toole filed special exceptions complaining of Williams' original petition. On April 16, 1993, the trial court granted appellees' special exceptions and ordered Williams to amend her pleadings within 30 days. The trial court ordered Williams (1) to remove all allegations of any DTPA violations against appellees; (2) to plead with specificity the acts of appellees that constituted gross negligence; (3) to plead her damages with specificity and to remove any allegations of mental anguish damages and damages for cruel and unusual punishment and restricted activity. The trial court's docket sheet shows that Williams did not appear at the hearing on appellees' special exceptions.

On May 3, 1993, Williams filed her first amended petition and moved to set aside the special exceptions granted by the trial court. The trial court's docket sheet shows that a hearing was held on May 14, 1993, on Williams' motion to set aside the order granting the special exceptions. The docket shows the trial court gave Williams permission to file additional pleadings. On May 14, 1993, appellees filed their second special exceptions complaining of Williams' first amended petition, and set a hearing for June 4, 1993. This hearing was apparently reset until September 3, 1993.

 Williams did not appear at the hearing on appellees' second special exceptions, and again, the trial court granted the special exceptions. The trial court ordered Williams (1) to remove the DTPA allegations from her amended pleading; (2) to remove all allegations of any warranty, express or implied; and (3) to plead with specificity appellees' actions she alleged constituted gross negligence. The trial court ordered Williams to replead within 30 days or her pleadings would be stricken and her lawsuit dismissed with prejudice.

 However, on October 22, 1993, the trial court granted Williams' motion to set aside the September 3, 1993, special exception order. On November 1, 1993, appellees filed their third special exceptions. On November 8, 1993, Williams filed her third amended petition. n4

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    n4 Williams' third amended petition was apparently mislabeled and was only her second amended petition.

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 Williams' third amended petition alleged that Neutercorp violated the DTPA because it engaged in false, misleading, or deceptive acts by (1) holding itself out as a full service hospital capable of handling emergency situations; (2) allowing unlicensed employees to practice veterinary medicine without supervision contrary to the Veterinarian Rules of Professional Conduct; and (3) holding itself out to be a hospital, denoting a higher level of competence and care than an ordinary clinic. The petition alleged that O'Toole failed to use ordinary and due care, which amounted to gross negligence; in failing to treat the dog's injuries; and in failing to assist or advise in transporting the dog to a specialist. Williams claimed actual damages, mental anguish damages, lost wages, and attorney's fees.

 At a hearing on December 3, 1993, the trial court granted the appellees' third special exceptions and ordered Williams to replead as to all defendants by January 15, 1994. On January 11, 1994, the trial court signed the order reflecting its decision at the hearing and ordered Williams (1) to remove the DTPA cause of action from her pleadings; (2) to remove all allegations of any express or implied warranty; (3) to replead her mental anguish damages claim under Texas law for bystanders; (4) to replead her punitive damages claim to state the correct standard of care, and lack thereof, required to entitle her to punitive damages; and (5) to remove any claim for attorney's fees from her pleadings.

 On January 14, 1994, Williams filed a fourth amended petition that was devoid of any factual allegations and was missing several pages. On January 18, 1994, she filed another petition, also designated as her fourth amended petition. Williams' fourth amended petition contains the same factual allegations against appellees as her third amended petition. She alleged that Neutercorp violated the DTPA by representing that its services had certain characteristics, benefits, standards, and qualities that they did not and by failing to disclose information regarding its services to induce Williams to enter into the transaction. Specifically, she alleged that Neutercorp held itself out as a full service hospital capable of handling emergency situations and allowed unlicensed employees to practice veterinary medicine without supervision. Williams alleged that in committing these violations, Neutercorp committed "unconscionable actions." She claimed actual damages, attorney's fees, and treble damages because all acts were done knowingly.

 Williams alleged that O'Toole was negligent and grossly negligent because once she diagnosed the dog's injuries through X-rays and an examination, she did not administer treatment, take any steps to prevent further injury, or inform Williams where to obtain the necessary medical treatment needed. Moreover, Williams alleged that although O'Toole referred Happy to another facility, she did not prepare Happy for transport.

 In April, appellees filed a motion to dismiss or, alternatively, their fourth special exceptions. On May 20, 1994, the trial court dismissed Williams' lawsuit with prejudice.

 Standard of review

 In reviewing the trial court's order of dismissal upon special exceptions, we are required to accept as true all material fact allegations set forth in the pleadings. Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 288 (Tex. App.--Houston [1st Dist.] 1992, no writ). Clothed with broad discretion in granting special exceptions, a trial court's ruling may be reversed only upon a showing of an abuse of discretion. Albright v. Department of Human Serv., 859 S.W.2d 575, 582 (Tex. App.--Houston [1st Dist.] 1993, no writ).

 A special exception is the appropriate means by which to urge that the plaintiff has not pled a cause of action. Albright, 859 S.W.2d at 582. When special exceptions are sustained by the trial court, the pleader must be given, as a matter of right, an opportunity to amend the pleading. Id. When the special exceptions are sustained, the pleader may amend the petition or refuse to amend and thereby test the validity of the ruling on appeal. Id. A trial court may not dismiss a suit until a party has been given an option to amend, unless it is clear that an amendment will not cure the defect. Id.

 DTPA

 In point of error one, Williams contends that the trial court erred in ruling that the DTPA does not apply in suits against veterinarians for misrepresentations under the Medical Liability and Insurance Improvement Act.

 The trial court's order sustaining appellees' special exception does not state the ground for ordering Williams to remove all allegation regarding the DTPA. In their special exception motion, appellees contended that, among other things, the Veterinary Licensing Act, Tex. Rev. Civ. Stat. Ann. art. 8890 (Vernon Pamp. 1995), expressly provides that the DTPA does not apply in veterinary malpractice cases. The Veterinary Licensing Act provides:

 The Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business  & Commerce Code) does not apply to a veterinarian licensed under this Act with respect to claims for damages for veterinary malpractice or alleged to have resulted from negligence on the part of the veterinarian.

 Tex. Rev. Civ. Stat. Ann. art. 8890, 18C (Vernon Pamp. 1995). Williams' pleadings state that O'Toole is a licensed veterinarian. Neutercorp is also a considered a veterinarian under the Act. n5 Thus the Act precludes Williams from bringing a cause of action under the DTPA for malpractice or negligence.

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    n5 Section 22(a) of the Act provides:

    No sole proprietorship, partnership, or corporation shall engage in veterinary medicine unless the owner, partners, or shareholders, respectively, are all licensees.

    Tex. Rev. Civ. Stat. Ann. art. 8890, 22(a) (Vernon Pamp. 1995).

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 Williams contends that her DTPA cause of action is not precluded by the Texas Medical Liability & Insurance Improvement Act (Medical Liability Act), Tex. Rev. Civ. Stat. Ann. art. 4590i, 12.01(a) (Vernon Pamp. 1995). She cites Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994), and Chapman v. Paul R. Wilson, Jr., D.D.S., Inc., 826 S.W.2d 214, 219 (Tex. App.--Austin 1992, writ denied), to support her position that her DTPA cause of action is allowed under the Medical Liability Act. The Medical Liability Act governs health care providers and physicians as defined in the act. Tex. Rev. Civ. Stat. Ann. art. 4590i, 1.03(3), (8) (Vernon Pamp. 1995). The Veterinary Licensing Act governs veterinarians, i.e., those who practice veterinarian medicine. See Tex. Rev. Civ. Stat. Ann. art. 8890, 2 (Vernon Pamp. 1995). We find Happy was treated by veterinarians, and therefore, the Medical Liability Act does not apply to the facts of this lawsuit.

 To the extent Williams cites the above authority to analogize to the Veterinary Licensing Act, we will consider her argument. The Medical Liability Act provides that the DTPA shall not apply to physicians or health care providers "with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider." Tex. Rev. Civ. Stat. Ann. art. 4590i, 12.01(a) (Vernon Pamp. 1995). In Sorokolit, the supreme court held that the Medical Liability Act "only precludes a DTPA suit against a physician for negligence -- that is, a suit founded on a breach of the accepted standard of medical care." 889 S.W.2d at 242. A claim cannot be asserted against a physician for damages for personal injury or death if the damages result, or are alleged to result, from negligence. Id. If, however, the alleged DTPA claim is not based on the physician's breach of the accepted standard of medical care, the Medical Liability Act does not preclude suit. Id. The underlying nature of the claim determines whether suit is precluded. n6 Id.

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    n6 In Sorokolit, the court determined that the plaintiff's claims did not involve a determination of whether the doctor failed to meet the standard of medical care but involved intentional deception and breach of express guarantees. 889 S.W.2d at 242-43.

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 The language in the Veterinary Licensing Act regarding the DTPA is different than the language used in the Medical Liability Act. The Veterinary Licensing Act provides that the DTPA does not apply to negligence or veterinary malpractice claims. This language is broader than the language used in the Medical Liability Act. The term "malpractice" encompasses the intentional and negligent misconduct of professionals in the course of performing services for their clients. See Citizens State Bank v. Shapiro, 575 S.W.2d 375, 386 (Tex. App.--Tyler 1978, writ ref'd n.r.e). Therefore, if we analyze this case under Sorokolit, we must examine Williams underlying claims to see if they fall within article 8890, section 18C.

 Williams alleges that Neutercorp violated the DTPA by misrepresenting the standard, quality, and character of the services it provided. Specifically, she contends that Neutercorp held itself out as a full service animal hospital capable of handling emergencies. However, the allegations in Williams' pleadings do not show that Neutercorp did not provide or was not capable of providing emergency services. She alleges merely that Neutercorp did not provide certain care to Happy. Williams alleges that Neutercorp properly diagnosed Happy's injuries and informed her that Happy needed a specialist. Her pleadings do not allege that Happy did not recover from his injuries or was further injured; in fact, at oral argument Williams stated that Happy fully recovered. Moreover, she did not allege that Neutercorp held itself out as providing the services of a specialist, which are the services Happy required to recover fully. Her pleadings do not assert any knowing misrepresentation regarding emergency services.

 Williams also alleged Neutercorp violated the DTPA by allowing unlicensed employees to practice veterinary medicine. However, she only complains of the acts and omissions of O'Toole, who she admits is a licensed veterinarian. Therefore, we hold she did not state a DTPA cause of action on this basis. Moreover, this allegation involves negligence, i.e., a determination of whether Neutercorp breached the standard of care by allowing unqualified employees to treat its patients.

 We hold that a DTPA cause of action may not be asserted against Neutercorp under these facts. Tex. Rev. Civ. Stat. Ann. art. 8890, 18C.

 There is an additional basis under the Veterinary Licensing Act for holding that the trial court did not abuse its discretion by dismissing Williams' pleadings. Article 8891 of the Act provides:

    A veterinarian who, on his own initiative or at the request of a person other than the owner, renders emergency treatment to an ill or injured animal is not liable to the owner for damages to the animal except in cases of gross negligence. . . .

 Tex. Rev. Civ. Stat. Ann. art. 8891, 2 (Vernon Pamp. 1995) (emphasis added). In her pleadings, Williams alleges that the groomer at Petsmart, who is a person other than Happy's owner, took the dog to Neutercorp's clinic. Her pleadings allege that O'Toole telephoned her about Happy's injuries after he was taken to the Neutercorp clinic by Petsmart and diagnosed. Although Williams and Neutercorp had a prior relationship, Neutercorp rendered emergency care in this instance at the request of Petsmart and not Williams. Therefore, Neutercorp and O'Toole are only liable for gross negligence because they rendered emergency treatment to the injured Happy at the request of a Petsmart employee.

 Williams did not plead a cause of action under the DTPA. Thus, we hold the trial court did not abuse its discretion by dismissing Williams' pleadings after it sustained the special exception regarding the DTPA and after Williams refused to replead.

 We overrule point of error one.

 Attorney's fees

 In point of error two, Williams contends the trial court erred in ordering her to remove all allegations regarding her request for attorney's fees. In her pleadings, Williams requested attorney's fees under her DTPA cause of action. She did not plead any other basis for recovering attorney's fees.

 Because we previously held that Williams was precluded from pleading a DTPA cause of action under Tex. Rev. Civ. Stat. Ann. arts. 8890-91, we hold that she did not plead any basis that would allow her to recover attorney's fees. Therefore, the trial court did not abuse its discretion in dismissing her pleading as to her claim for attorney's fees.

 We overrule point of error two.

 Gross negligence

 In point of error three, Williams contends the trial court erred in dismissing her lawsuit against O'Toole for gross negligence because the cause of action was properly pled.

 In her fourth amended petition, Williams alleged that O'Toole was grossly negligent and acted in reckless disregard of the consequences of her actions because once she diagnosed the dogs' injuries through X-rays and an examination, she did not administer treatment, take any steps to prevent further injury, or inform Williams where to obtain the necessary medical treatment needed. Williams alleged that although O'Toole referred Happy to another facility, she did not prepare Happy for transport. She contends O'Toole was under a duty to give continued attention and treatment to Happy following diagnosis.

 In their special exceptions that were sustained by the trial court, the appellees requested all allegations of punitive damages be repleaded to state the correct definition of care, and the lack thereof, required to be entitled to punitive damages. Williams contends she properly pled a gross negligence cause of action under rule 47 of the Texas Rules of Civil Procedure because her pleadings set forth a claim sufficient to give fair notice of the claim involved.

 Generally, pleadings are sufficient if they give the opposing party fair notice of the claim involved. Willock v. Bui, 734 S.W.2d 390, 392 (Tex. App.--Houston [1st Dist.] 1987, no writ). However, if a plaintiff does not plead all the elements of its cause of action, the defendant can, through special exceptions, require the plaintiff to plead specifically. Moseley v. Hernandez, 797 S.W.2d 240, 242 (Tex. App.--Corpus Christi 1990, no writ); Spencer v. City of Seagoville, 700 S.W.2d 953, 957 (Tex. App.--Dallas 1985, no writ). Thus, a trial court can require more specific pleading in response to special exceptions; that is what occurred in this case.

 Gross negligence as a basis for a cause of action must be drawn from particular facts of the case, and such facts must be alleged that, if proved, would show a case of gross negligence. Faulkner v. Kleinman, 158 S.W.2d 891, 892 (Tex. App.--Austin 1942, no writ). The pleader is required to be more specific and to allege at least sufficient facts to apprise his adversary of the kind of proof that he will offer to show gross negligence. Id. "Gross negligence" is that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons affected by it. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex. 1981). A plaintiff must show an extreme risk of harm and show that the defendant was consciously indifferent to the extreme risk. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 21-22 (Tex. 1994).

 In her pleadings, Williams alleges that O'Toole did not prepare Happy for transportation to the specialist or take steps to prevent further injury. These facts may show O'Toole breached the standard of care for a veterinarian, i.e., ordinary negligence. Even assuming these omissions constitute negligence, Williams does not assert that Happy was injured as a result of the omissions. Williams did not plead the elements of gross negligence, and the facts she alleged do not show a case of gross negligence.

 We overrule point of error three.

 We affirm the judgment of the trial court.

 /s/ Davie L. Wilson

 Justice

 Justices Hutson-Dunn and Hedges also sitting.

 Judgment rendered and opinion delivered

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