DocketNumber： 14-05-01232-CV
Filed Date： 5/22/2007
Status： Precedential
Modified Date： 9/15/2015
Affirmed as Modified and Memorandum Opinion filed May 22, 2007.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-01232-CV
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LYCETT RITCHIE, Appellant
V.
DR. NESHAT YAZDI, APPLE DENTISTS, PLLC, AND DR. FATEMAH BIJAN Appellees
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 03-48699
M E M O R A N D U M O P I N I O N
Appellant Lycett Ritchie sued appellees Dr. Neshat Yazdi, Apple Dentists, PLLC, and Dr. Fatemah Bijan asserting numerous causes of action arising out of the making of a denture. Prior to trial, the trial court granted partial summary judgment to Apple Dentists[1] and Dr. Yazdi on Ritchie=s Deceptive Trade Practices Act (ADTPA@) claim. Following a trial, the jury found that both Dr. Yazdi and Ritchie were negligent and apportioned fifty percent negligence to each. We reform the judgment to award pre- and post-judgment interest and affirm the judgment as modified.
I. Background
Ritchie was fifty-three years old at the time of trial and has worn dentures since she was fifteen years old. In October 2002, Ritchie met with Dr. Yazdi with Apple Dentists to consult regarding dental work she needed. Dr. Yazdi and Ritchie agreed on a treatment plan including a deep or gross scale cleaning and a new upper denture. The total cost of all services was $1,290. The failure to provide a properly fitting upper denture and the alleged failure to perform the deep cleaning form the basis of this lawsuit.
Dr. Yazdi attended to Ritchie four or five times before delivering the denture. Ritchie testified that problems with her treatment began during the first visit when Dr. Yazdi left the material used to make the denture mold in Ritchie=s mouth too long, causing difficulty removing and possible damage to the mold. Dr. Yazdi denied leaving the mold material in too long or having any problems removing it. During the next two to three visits, Dr. Yazdi worked with Ritchie on various procedures designed to aid construction of the final denture. Ritchie claimed she complained repeatedly that the Awax try in,@ which is used to help mold the final denture, was uncomfortable and caused irritation, sores, and gagging. Ritchie testified that Dr. Yazdi was extremely hostile toward her regarding her complaints and eventually began screaming at her that A[t]his is how it=s going to be. You have to get used to this with the fit. You have to get used to this.@
Dr. Yazdi delivered the final denture December 24, 2002. Ritchie testified that she complained to Dr. Yazdi that the denture was uncomfortable, causing irritation and an overbite, and Dr. Yazdi was again hostile toward her complaints and told her she just needed to get used to it. Dr. Yazdi admitted that Ritchie complained at this visit and noted in her chart that Ritchie was rude. Ritchie did, however, acknowledge that Dr. Yazdi made some adjustments at this point and told her more would be needed in the future, although the adjustments still not did not alleviate Ritchie=s discomfort. Over the next month, the denture gave her a Abuck teeth@ appearance, caused pain and discomfort, and interfered with her ability to chew and thus follow her physician=s recommended diet.
On January 28, 2003, Ritchie had a follow up appointment with Dr. Yazdi. Drs. Yazdi and Bijan met with Ritchie to discuss her concerns. As before, the evidence conflicted substantially as to what occurred during this appointment. Ritchie testified that both doctors were hostile toward her, especially Dr. Yazdi. Both doctors, as well as an assistant, testified that Ritchie was rude and refused any and all adjustments. Additionally, Dr. Yazdi testified that she offered to remake the denture should that be necessary, which Ritchie disputes. Ritchie also disputes that she refused adjustments, though her testimony indicated that she did not want Dr. Yazdi to perform any additional work on her and admitted that she told Dr. Yazdi that she was very busy and did not have time to continue coming for adjustments. Ritchie left the office and never returned for any adjustments. Ritchie also testified that she requested a refund at some point, which she never received.
On March 1, 2003, Dr. Yazdi telephoned Ritchie to provide a detailed list of charges for services provided. The testimony regarding this phone call and what was offered was somewhat different between Dr. Yazdi and Ritchie. Both agreed that Dr. Yazdi offered to do adjustments, which Ritchie later rejected, but Dr. Yazdi testified that she offered again to make a new denture, which Ritchie disputes.
On April 15, 2003, Ritchie met with Dr. Patricia Serna, another dentist, who eventually made a new upper denture for Ritchie. Ritchie returned for subsequent adjustments and was ultimately very happy with the denture. Dr. Serna stated that Ritchie was cooperative and pleasant.
At trial, each side presented expert testimony on the issue of negligence in the making and fitting of the denture as well as Ritchie=s reasonableness in refusing adjustments or a new denture. Ritchie presented testimony from Dr. Gene Stevenson, an expert on prosthodonics who taught Dr. Yazdi in dental school. Dr. Stevenson explained that there are four measurements of whether dentures meet the standard of care: (1) aesthetics, (2) comfort, (3) bite, and (4) preservation of oral health. According to Dr. Stevenson, while the denture could have been adjusted to make it more comfortable and to improve functionality, it could not be adjusted aesthetically or to have an adequate bite. He testified he was embarrassed to see one of his students present a denture that failed the standard of care in two respects. Dr. Patrick Flinn testified on Dr. Yazdi=s behalf. Dr. Flinn testified that Dr. Yazdi met the standard of care because the denture could have been adjusted to be workable. While he agreed the denture left something to be desired, he also testified that all dentures can be adjusted. Finally, he testified that it was unreasonable to refuse adjustments and the making of a new denture.
The jury found both Dr. Yazdi and Ritchie negligent, apportioning fifty percent negligence to each. The jury awarded a total of $2,000 in past physical pain and mental anguish and $790 in past medical expenses. The trial court awarded half of the damages to RitchieCin line with the negligence findingCbut did not include pre- or post-judgment interest. Ritchie now appeals and raises the following seven issues: (1) the trial court erred in failing to award pre-judgment interest, (2) the trial court erred in failing to award post-judgment interest, (3) there is no evidence to support the jury=s finding of contributory negligence, (4) there is insufficient evidence supporting the jury=s finding of contributory negligence, (5) the trial court abused its discretion in refusing to award appellant costs, (6) the trial court erred in granting summary judgment on appellant=s DTPA claim, and (7) the trial court should have awarded appellant her expert witness fees as costs.
II. Analysis
A. Interest
In Ritchie=s first two issues, she claims the trial court erred in failing to award pre- and post-judgment interest. Appellees concede that Ritchie should have been awarded both
pre- and post-judgment interest. See Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 441 (Tex. App.CHouston [1st Dist.] 2000, no pet.). Additionally, appellees have offered an amount for pre-judgment interest and a manner for calculating post-judgment interest. According to appellees, there is no dispute between the parties as to these amounts or the method of calculating the interest. Therefore, we will reform the judgment pursuant to our authority under Texas Rule of Appellate Procedure 43.2(b) to reflect $170.52 in pre-judgment interest and post-judgment interest in the amount of six percent per year from the date of the final judgment, September 12, 2005, to the date that such judgment is paid, excluding only the extension of time to file Ritchie=s brief granted on appeal. See Tex. Fin. Code Ann. ' 304.005(b) (Vernon Supp. 2006B2007) (governing the exclusion of time granted for an extension of time to file a brief in the calculation of post-judgment interest).
B. Sufficiency of the Evidence
Ritchie raises two issues regarding the sufficiency of the evidence to support the jury=s finding on contributory negligence. In her first issue regarding the evidence, she contends there is no evidence to support the jury=s finding. In her second issue regarding the evidence, she argues the trial court should have granted her motion for new trial because the evidence is factually insufficient to support the jury=s finding.
1. Legal Sufficiency
In determining whether there the evidence is legally sufficient evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not disregard it. See id. at 827. We must determine whether the evidence at trial would enable a reasonable and fair‑minded person to find the facts at issue. See id. The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See id. at 819. Evidence is conclusive only if reasonable people could not differ in their conclusions. See id. at 816. We conduct our review in light of the jury charge. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).
The jury charge defined negligence with respect to Ritchie=s conduct as the Afailure to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.@ Therefore, the question we must answer is whether sufficient evidence supports the jury=s finding that Ritchie did not act as an ordinary prudent person would have when she refused to have the denture adjusted.
All of the experts agreed that newly-made dentures can be adjusted. Specific to this denture, the experts agreed, at minimum, that it could have been adjusted for comfort and basic functionality. Moreover, the experts agreed that virtually every immediate denture requires adjustments, to take place over the course of several visits. These visits are required because the patient=s mouth will change during the healing process following an extraction. The evidence showed that it would be wholly unreasonable for a patient to refuse adjustments pursuant to a doctor=s instructions. Ritchie allowed Dr. Yazdi to make some adjustments on the date of delivery, but none thereafter.
The evidence indicated that, regardless of whether the denture had been well-manufactured in the first instance, some adjustments would have been necessary. Even if these adjustments could not make the denture compliant with the standard of care in all four areasCaesthetics, bite, comfort, and oral healthCthey could have addressed bite and comfort. Thus, there was legally sufficient evidence to support a finding that Ritchie was unreasonable and negligent in refusing to allow anyone to make adjustments to the denture. Furthermore, there was testimony from Dr. Yazdi, which the jury was entitled to believe, that she offered to make Ritchie a new denture and Ritchie refused. This evidence also supports the jury=s finding that Ritchie contributed to her own harm.[2] Accordingly, we overrule this issue.
2. Factual Sufficiency
Ritchie next argues the evidence is factually insufficient to support the jury=s contributory negligence finding. In reviewing a factual sufficiency issue, we consider all the evidence supporting and contradicting the finding. Plas‑Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the verdict only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust or if the result shocks the conscience or clearly indicates bias. See Pool v. Ford Motor Corp., 715 S.W.2d 629, 735 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We must conduct our analysis in light of the charge as submitted to the jury. See Osterberg, 12 S.W.3d at 55.
As discussed above, the jury was asked to evaluate whether Ritchie failed to do what Aa person of ordinary prudence would have done under the same or similar circumstances@ or if she did what Aa person of ordinary prudence would not have done under the same or similar circumstances.@ Here, Ritchie=s own evidence corroborated Dr. Yazdi=s general premise that Ritchie was unreasonable in refusing adjustments. Dr. Stevenson testified that the denture could have been made more comfortable, stable, and functional with adjustments. Although he testifiedCand the jury seemingly acceptedCthat the denture would have had to be remade regardless of any adjustments, his testimony supported Dr. Yazdi=s theory that Ritchie was unreasonable. Drs. Yazdi and Flinn testified that the denture could have been adjusted in every wayCa premise the jury did not accept. Regardless of the fact that the jury did not completely accept their testimony that the denture could be made perfect, the jury could use that testimony to support a finding that Ritchie was negligent when she refused to make the denture comfortable and functional while awaiting a new denture. Although Ritchie argues that Dr. Yazdi=s testimony and her records were self-serving and unreliable, it was within the province of the jury to assess the credibility of the witnesses. City of Keller, 168 S.W.3d at 819.
We hold the evidence is factually sufficient to support the jury=s finding, and we overrule this issue.
C. Cost Allocation
In her next issue, Ritchie contends the trial court abused its discretion when it ordered that each party would bear its own costs. Neither party seems to dispute Ritchie=s status as the prevailing party for purposes of Texas Rule of Civil Procedure 131. However, the parties dispute whether good cause existed for the trial court to apportion the costs as it did pursuant to Texas Rule of Civil Procedure 141, which states A[t]he court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.@
Regarding costs, the trial court stated in its final judgment:
Because every cause of action, with the exception of negligence against Dr.Yazdi, was either non-suited or a directed verdict was granted, the Court finds that each party should bear its own costs in this matter.
Rule 141 requires both good cause for deviation from the rules and that the trial court=s justification be stated on the record. Furr=s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 376 (Tex. 2001). Good cause is an elusive concept and varies from case to case. Id. at 376B77. Typically, though, good cause means that the prevailing party unnecessarily prolonged the proceedings, unreasonably increased costs, or otherwise did something that should be penalized. Id. at 377. We review the trial court=s use of Rule 141 under an abuse of discretion standard. See id. at 376.
Here, the trial court determined that each party should bear its own costs because Ritchie asserted numerous claims against three parties and yet only one claim against one party was presented to the jury. Implicit in the trial court=s statement of good cause on the record is that Ritchie filed numerous claims against all three defendants below, of which only one had a basis in law or fact, and thus Ritchie should bear her own costs. The trial court=s basis for good cause was not an abuse of discretion, and we overrule Ritchie=s issues related to costs, including her argument that her expert fees should be taxed as costs against appellees.[3]
D. DTPA Claim
In her final issue, Ritchie alleges the trial court erred when it granted appellees= motion for summary judgment on her DTPA claims. According to Ritchie, Dr. Yazdi is liable under the DTPA because she intentionally misrepresented how the denture should fit. Therefore, Ritchie argues, the DTPA claim can be maintained under the reasoning of Sorokolit v. Rhodes, 889 S.W.2d 239, 242B43 (Tex. 1994) (holding that a DTPA suit against a physician is not precluded for a knowing misrepresentation or breach of express warranty in cases in which a physician warrants a particular result). We disagree.
Claims for physician negligence cannot be maintained under the DTPA. See id. at 242. However, if the claim rests not on the alleged breach of the standard of care, a DTPA claim may lie against a physician. See id. Merely recasting a claim as something other than negligence will not allow the claim to survive as a DTPA claim. See id. Yet, that is precisely what Ritchie attempted with her pleadings.
Ritchie relies heavily on the Sorokolit case for the proposition that her pleadings were not attempting to recast her claims. Yet the Walden case is on point and controlling. Walden v. Jeffery, 907 S.W.2d 446 (Tex. 1995). Notably, Walden was issued a little more than a year after Sorokolit and distinguishes the facts of the two cases. Id. at 447B48. In Walden, the Texas Supreme Court held that Jeffery was simply recasting a medical negligence case involving dentures. Id. at 447B48. The supreme court reasoned that the case was not a DTPA case because Jeffery=s pleadings established, as a matter of law, that the Aproviding of dentures was an inseparable part of Walden=s rendition of medical services.@ Id. at 448. The same is true here. All of Ritchie=s claims are inseparable from Dr. Yazdi=s rendition of medical services and the breach of the standard of care. Therefore, we overrule Ritchie=s final issue.
III. Conclusion
We hold that the trial court erred by not awarding pre- and post-judgment interest to Ritchie. Therefore, we reform the judgment to award pre-judgment interest in the amount of $170.52, and to award post-judgment interest in the amount of six percent per year from the date of the final judgment, September 12, 2005, to the date that such judgment is paid, excluding only the extension of time to file Ritchie=s brief granted on appeal. We overrule Ritchie=s remaining issues and affirm the judgment as modified.
/s/ Leslie B. Yates
Justice
Judgment rendered and Memorandum Opinion filed May 22, 2007.
Panel consists of Justices Yates, Anderson, and Hudson.
[1] Appellant has not raised any issues in this appeal as to Apple Dentists or Dr. Bijan.
[2] Ritchie also argues there is Ano evidence to support the jury=s finding that [she] proximately caused her own harm through Dr. Yazdi=s failure to perform a gross scaling.@ However, the jury was not asked to make specific findings as to each alleged act of negligence. Because there is ample evidence in the record to support the jury=s finding of contributory negligence, we need not address this specific argument.
[3] Ritchie raised the expert fees issue as a separate argument. Yet we need not reach it separately because, even if we were to agree with Ritchie that expert fees in a medical malpractice case may be taxed against the losing party, she would not be entitled to them in light of the trial court=s order that each party should bear its own costs.