Date: 10-05-2012
Case Style: Wendy Kritzer v. Scott E. Kasden, M.D. and Scott E. Kasden, M.D., P.A.
Case Number: 02-11-00460-CV
Judge: Bob MCoy
Court: Texas Court of Appeals, Second District on appeal from the 153rd District Court, Tarrant County
Plaintiff's Attorney: William J. Dunleavy
Defendant's Attorney: Edward P. Quillin
Description: In two issues, Appellant Wendy Kritzer appeals the trial court’s decision to dismiss her breach of contract claim. We reverse in part and remand in part.
II. Factual and Procedural Background
Kritzer hired Appellees Scott E. Kasden, M.D. and Dr. Scott E. Kasden, M.D., P.A. (collectively Dr. Kasden) to perform breast augmentation surgery and other pre- and post-operative medical services. Kritzer paid for the surgery, which was completed in August 2007. However, she had some issues healing after the surgery and saw other physicians due to Dr. Kasden’s alleged failure to provide proper care.
Kritzer subsequently sued Dr. Kasden for negligence and breach of contract under the Texas Medical Liability Act (TMLA) and served an expert report.[2] Dr. Kasden filed special exceptions to Kritzer’s breach of contract claim and a motion for summary judgment on this claim, but he did not secure a ruling on either. He also moved to dismiss Kritzer’s breach of contract claim, which the trial court granted. The trial court entered a final judgment in favor of Dr. Kasden based on the jury’s verdict after a trial on the negligence claim. Kritzer now appeals the dismissal of her breach of contract claim.
III. Dismissal
In her first issue, Kritzer asserts that the trial court erred by granting Dr. Kasden’s motion to dismiss her breach of contract claim “in the absence of any proper motion to dismiss and in the absence of any legal authority to support the dismissal.” That is, she complains that such a procedural device was not available to him and that because the trial court did not dismiss her claim for want of prosecution, by granting summary judgment, or by finding that she failed to comply with the requirements of the TMLA, the dismissal was improper. Kritzer is correct.
Generally, there is no procedural mechanism in the Texas Rules of Civil Procedure for a motion to dismiss “although courts and litigants often act as if there is.” Alex Wilson Albright, Texas Courts A Survey 20 (2011–2012). Likewise, there is no Texas equivalent to a federal rule 12(b)(6) dismissal for “failure to state a claim upon which relief can be granted.”[3] See Fed. R. Civ. P. 12(b)(6); see also Tex. S. Univ. v. Rodriguez, No. 14-10-01079-CV, 2011 WL 2150238, at *5 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (mem. op.) (“Although the Federal Rules of Civil Procedure provide for a motion to dismiss for failure to state a claim upon which relief can be granted, no similar provision is included in the Texas Rules of Civil Procedure.”). And while defendants in medical malpractice cases are allowed by statute to have the claimant’s claim dismissed for failure to timely serve an expert report, see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (West 2011), Dr. Kasden’s “motion to dismiss” here does not touch on the expert report issue for its basis. Rather, in his motion, Dr. Kasden argues that a breach of contract cause of action is not available to Kritzer.[4]
The procedural vehicles available to Dr. Kasden were the special exception procedure described in rules of civil procedure 90 and 91 or a motion for summary judgment under rule 166a, depending on the nature of his complaint. See, e.g., Rodriguez, 2011 WL 2150238, at *5 (“Under the Texas Rules of Civil Procedure, the proper way for a defendant to urge that a plaintiff has failed to plead a cause of action is by special exceptions.”).[5]
Dr. Kasden’s basic assertion in his motion to dismiss is that there is no breach of contract claim allowed under the TMLA. This is akin to asserting that a cause of action or element of damage is not recognized in Texas, and “[s]pecial exceptions are appropriate to challenge a plaintiff’s failure to state a cause of action.” Parker v. Barefield, 206 S.W.3d 119, 120 (Tex. 2006); see Tex. R. Civ. P. 91. “But once the trial court sustains the special exceptions, if the defect is curable, it must allow the pleader an opportunity to amend.” Parker, 206 S.W.3d at 120 (emphasis added); Zeid v. Pearce, 953 S.W.2d 368, 369 (Tex. App.—El Paso 1997, no writ) (affirming dismissal based on special exceptions in veterinary malpractice suit because plaintiffs did not plead for damages that were recoverable in Texas for pain and suffering or mental anguish for loss of a pet). But cf. Medlen v. Strickland, 353 S.W.3d 576, 580 (Tex. App.—Fort Worth 2011, pet. granted) (“Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as any other personal property.”). “[O]nly after a party has been given an opportunity to amend after special exceptions have been sustained may the case be dismissed for failure to state a cause of action.” Tex. Dep’t of Corr. v. Herring, 513 S.W.2d 6, 10 (Tex. 1974) (emphasis added); Rodriguez, 2011 WL 2150238, at *5–6.[6]
Considering the foregoing, we sustain part of Kritzer’s first issue and hold that the trial court could not grant Dr. Kasden’s motion to dismiss in that it was not a procedural vehicle available to Dr. Kasden when urging that a breach of contract action did not exist under the TMLA and that the trial court’s error prevented Kritzer from properly presenting her contract claim on appeal on the merits. See Tex. R. App. P. 44.1(a)(2). We need not reach Kritzer’s remaining arguments. See Tex. R. App. P. 47.1.
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See: http://www.2ndcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=23724
Outcome: Having sustained the dispositive portion of Kritzer’s first issue, we reverse only the portion of the trial court’s judgment dismissing Kritzer’s breach of contract claim, and we remand that claim to the trial court for further proceedings consistent with this opinion.
Plaintiff's Experts:
Defendant's Experts:
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