Affirmed as=20
Modified and =
Memorandum=20
Opinion filed May 22, 2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-05-01232-CV
____________
LYCETT=20
RITCHIE, =
Appellant
V.
DR. NESHAT=20
YAZDI, APPLE DENTISTS, =
PLLC, AND=20
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=20
A N D U M O P I N I O N
Appellant=20
Lycett Ritchie sued appellees Dr. Neshat Yazdi, Apple Dentists, =
PLLC, and=20
Dr. Fatemah Bijan asserting numerous causes of action arising out =
of the=20
making of a denture. Prior to trial, the trial court granted =
partial=20
summary judgment to Apple Dentists=20
and Dr. Yazdi on Ritchie=3Ds=20
Deceptive Trade Practices Act (ADTPA@)=20
claim. Following a trial, the jury found that both Dr. Yazdi =
and=20
Ritchie were negligent and apportioned fifty percent negligence to =
each.=20
We reform the judgment to award pre- and post-judgment interest =
and affirm=20
the judgment as modified.
I.=20
Background
Ritchie=20
was fifty-three years old at the time of trial and has worn =
dentures since=20
she was fifteen years old. In October 2002, Ritchie met with =
Dr.=20
Yazdi with Apple Dentists to consult regarding dental work she=20
needed. Dr. Yazdi and Ritchie agreed on a treatment plan =
including a=20
deep or gross scale cleaning and a new upper denture. The =
total cost=20
of all services was $1,290. The failure to provide a =
properly=20
fitting upper denture and the alleged failure to perform the deep =
cleaning=20
form the basis of this lawsuit.
Dr. Yazdi=20
attended to Ritchie four or five times before delivering the=20
denture. Ritchie testified that problems with her treatment =
began=20
during the first visit when Dr. Yazdi left the material used to =
make the=20
denture mold in Ritchie=3Ds mouth=20
too long, causing difficulty removing and possible damage to the=20
mold. Dr. Yazdi denied leaving the mold material in too long =
or=20
having any problems removing it. During the next two to =
three=20
visits, Dr. Yazdi worked with Ritchie on various procedures =
designed to=20
aid construction of the final denture. Ritchie claimed she=20
complained repeatedly that the Awax try=20
in,@ =
which is=20
used to help mold the final denture, was uncomfortable and caused=20
irritation, sores, and gagging. Ritchie testified that Dr. =
Yazdi was=20
extremely hostile toward her regarding her complaints and =
eventually began=20
screaming at her that A[t]his is=20
how it=3Ds going to=20
be. You have to get used to this with the fit. You =
have to get=20
used to this.@
Dr. Yazdi=20
delivered the final denture December 24, 2002. Ritchie =
testified=20
that she complained to Dr. Yazdi that the denture was =
uncomfortable,=20
causing irritation and an overbite, and Dr. Yazdi was again =
hostile toward=20
her complaints and told her she just needed to get used to =
it. Dr.=20
Yazdi admitted that Ritchie complained at this visit and noted in =
her=20
chart that Ritchie was rude. Ritchie did, however, =
acknowledge that=20
Dr. Yazdi made some adjustments at this point and told her more =
would be=20
needed in the future, although the adjustments still not did not =
alleviate=20
Ritchie=3Ds=20
discomfort. Over the next month, the denture gave her a =
Abuck=20
teeth@ =
appearance, caused pain and discomfort, and interfered with her =
ability to=20
chew and thus follow her physician=3Ds=20
recommended diet.
On January=20
28, 2003, Ritchie had a follow up appointment with Dr. =
Yazdi. Drs.=20
Yazdi and Bijan met with Ritchie to discuss her concerns. As =
before,=20
the evidence conflicted substantially as to what occurred during =
this=20
appointment. Ritchie testified that both doctors were =
hostile toward=20
her, especially Dr. Yazdi. Both doctors, as well as an =
assistant,=20
testified that Ritchie was rude and refused any and all =
adjustments. =20
Additionally, Dr. Yazdi testified that she offered to remake the =
denture=20
should that be necessary, which Ritchie disputes. Ritchie =
also=20
disputes that she refused adjustments, though her testimony =
indicated that=20
she did not want Dr. Yazdi to perform any additional work on her =
and=20
admitted that she told Dr. Yazdi that she was very busy and did =
not have=20
time to continue coming for adjustments. Ritchie left the =
office and=20
never returned for any adjustments. Ritchie also testified =
that she=20
requested a refund at some point, which she never =
received.
On March=20
1, 2003, Dr. Yazdi telephoned Ritchie to provide a detailed list =
of=20
charges for services provided. The testimony regarding this =
phone=20
call and what was offered was somewhat different between Dr. Yazdi =
and=20
Ritchie. Both agreed that Dr. Yazdi offered to do =
adjustments, which=20
Ritchie later rejected, but Dr. Yazdi testified that she offered =
again to=20
make a new denture, which Ritchie disputes.
On April=20
15, 2003, Ritchie met with Dr. Patricia Serna, another dentist, =
who=20
eventually made a new upper denture for Ritchie. Ritchie =
returned=20
for subsequent adjustments and was ultimately very happy with the=20
denture. Dr. Serna stated that Ritchie was cooperative and=20
pleasant.
At trial,=20
each side presented expert testimony on the issue of negligence in =
the=20
making and fitting of the denture as well as Ritchie=3Ds=20
reasonableness in refusing adjustments or a new denture. =
Ritchie=20
presented testimony from Dr. Gene Stevenson, an expert on =
prosthodonics=20
who taught Dr. Yazdi in dental school. Dr. Stevenson =
explained that=20
there are four measurements of whether dentures meet the standard =
of care:=20
(1) aesthetics, (2) comfort, (3) bite, and (4) preservation of =
oral=20
health. According to Dr. Stevenson, while the denture could =
have=20
been adjusted to make it more comfortable and to improve =
functionality, it=20
could not be adjusted aesthetically or to have an adequate =
bite. He=20
testified he was embarrassed to see one of his students present a =
denture=20
that failed the standard of care in two respects. Dr. =
Patrick Flinn=20
testified on Dr. Yazdi=3Ds=20
behalf. Dr. Flinn testified that Dr. Yazdi met the standard =
of care=20
because the denture could have been adjusted to be workable. =
While=20
he agreed the denture left something to be desired, he also =
testified that=20
all dentures can be adjusted. Finally, he testified that it =
was=20
unreasonable to refuse adjustments and the making of a new=20
denture.
The jury=20
found both Dr. Yazdi and Ritchie negligent, apportioning fifty =
percent=20
negligence to each. The jury awarded a total of $2,000 in =
past=20
physical pain and mental anguish and $790 in past medical =
expenses. =20
The trial court awarded half of the damages to RitchieCin line=20
with the negligence findingCbut did=20
not include pre- or post-judgment interest. Ritchie now =
appeals and=20
raises the following seven issues: (1) the trial court erred in =
failing to=20
award pre-judgment interest, (2) the trial court erred in failing =
to award=20
post-judgment interest, (3) there is no evidence to support the=20
jury=3Ds finding=20
of contributory negligence, (4) there is insufficient evidence =
supporting=20
the jury=3Ds finding=20
of contributory negligence, (5) the trial court abused its =
discretion in=20
refusing to award appellant costs, (6) the trial court erred in =
granting=20
summary judgment on appellant=3Ds DTPA=20
claim, and (7) the trial court should have awarded appellant her =
expert=20
witness fees as costs.
II. Analysis
A. =20
Interest
In=20
Ritchie=3Ds first=20
two issues, she claims the trial court erred in failing to award =
pre- and=20
post-judgment interest. Appellees concede that Ritchie =
should have=20
been awarded both
pre- and=20
post-judgment interest. See Olympia Marble & Granite =
v.=20
Mayes, 17 S.W.3d 437, 441 (Tex. App.CHouston=20
[1st Dist.] 2000, no pet.). Additionally, appellees have =
offered an=20
amount for pre-judgment interest and a manner for calculating=20
post-judgment interest. According to appellees, there is no =
dispute=20
between the parties as to these amounts or the method of =
calculating the=20
interest. Therefore, we will reform the judgment pursuant to =
our=20
authority under Texas Rule of Appellate Procedure 43.2(b) to =
reflect=20
$170.52 in pre-judgment interest and post-judgment interest in the =
amount=20
of six percent per year from the date of the final judgment, =
September 12,=20
2005, to the date that such judgment is paid, excluding only the =
extension=20
of time to file Ritchie=3Ds brief=20
granted on appeal. See Tex. Fin. Code Ann. =
' =
304.005(b) (Vernon Supp. 2006B2007)=20
(governing the exclusion of time granted for an extension of time =
to file=20
a brief in the calculation of post-judgment interest).
B. =20
Sufficiency of the Evidence
Ritchie=20
raises two issues regarding the sufficiency of the evidence to =
support the=20
jury=3Ds finding=20
on contributory negligence. In her first issue regarding the =
evidence, she contends there is no evidence to support the=20
jury=3Ds=20
finding. In her second issue regarding the evidence, she =
argues the=20
trial court should have granted her motion for new trial because =
the=20
evidence is factually insufficient to support the jury=3Ds finding.=20
1. =20
Legal Sufficiency
In determining =
whether there=20
the evidence is legally sufficient evidence, we consider the =
evidence in=20
the light most favorable to the challenged finding and indulge =
every=20
reasonable inference that would support it. See City of =
Keller v.=20
Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must credit=20
favorable evidence if a reasonable factfinder could and disregard =
contrary=20
evidence unless a reasonable factfinder could not disregard =
it. =20
See id. at 827. We must determine whether the =
evidence at=20
trial would enable a reasonable and fair‑minded person to =
find the facts=20
at issue. See id. The factfinder is the sole =
judge of=20
the credibility of the witnesses and the weight to give their=20
testimony. See id. at 819. Evidence is =
conclusive only=20
if reasonable people could not differ in their conclusions. =
See=20
id. at 816. We conduct our review in light of the jury=20
charge. See=20
Osterberg v. Peca, 12=20
S.W.3d 31, 55 (Tex. 2000).
The jury=20
charge defined negligence with respect to Ritchie=3Ds conduct=20
as the Afailure to=20
do that which a person of ordinary prudence would have done under =
the same=20
or similar circumstances or doing that which a person of ordinary =
prudence=20
would not have done under the same or similar =
circumstances.@ =20
Therefore, the question we must answer is whether sufficient =
evidence=20
supports the jury=3Ds finding=20
that Ritchie did not act as an ordinary prudent person would have =
when she=20
refused to have the denture adjusted.
All of the=20
experts agreed that newly-made dentures can be adjusted. =
Specific to=20
this denture, the experts agreed, at minimum, that it could have =
been=20
adjusted for comfort and basic functionality. Moreover, the =
experts=20
agreed that virtually every immediate denture requires =
adjustments, to=20
take place over the course of several visits. These visits =
are=20
required because the patient=3Ds mouth=20
will change during the healing process following an =
extraction. The=20
evidence showed that it would be wholly unreasonable for a patient =
to=20
refuse adjustments pursuant to a doctor=3Ds=20
instructions. Ritchie allowed Dr. Yazdi to make some =
adjustments on=20
the date of delivery, but none thereafter. =
The=20
evidence indicated that, regardless of whether the denture had =
been=20
well-manufactured in the first instance, some adjustments would =
have been=20
necessary. Even if these adjustments could not make the =
denture=20
compliant with the standard of care in all four areasCaesthetics,=20
bite, comfort, and oral healthCthey could=20
have addressed bite and comfort. Thus, there was legally =
sufficient=20
evidence to support a finding that Ritchie was unreasonable and =
negligent=20
in refusing to allow anyone to make adjustments to the =
denture. =20
Furthermore, there was testimony from Dr. Yazdi, which the jury =
was=20
entitled to believe, that she offered to make Ritchie a new =
denture and=20
Ritchie refused. This evidence also supports the jury=3Ds finding=20
that Ritchie contributed to her own harm. =20
Accordingly, we overrule this issue.
2. =20
Factual Sufficiency
Ritchie=20
next argues the evidence is factually insufficient to support the=20
jury=3Ds=20
contributory negligence finding. In reviewing a factual =
sufficiency=20
issue, we consider all the evidence supporting and contradicting =
the=20
finding. Plas‑Tex, Inc. v. U.S. Steel Corp., =
772 S.W.2d 442,=20
445 (Tex. 1989). We set aside the verdict only if the =
finding is so=20
contrary to the overwhelming weight of the evidence as to be =
clearly wrong=20
and unjust or if the result shocks the conscience or clearly =
indicates=20
bias. See Pool v. Ford Motor Corp., 715 S.W.2d =
629,=20
735 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.=20
1986). We must conduct our analysis in light of the charge =
as=20
submitted to the jury. See Osterberg, 12 S.W.3d at=20
55.
As=20
discussed above, the jury was asked to evaluate whether Ritchie =
failed to=20
do what Aa person=20
of ordinary prudence would have done under the same or similar=20
circumstances@ =
or if she=20
did what Aa person=20
of ordinary prudence would not have done under the same or similar =
circumstances.@ =20
Here, Ritchie=3Ds own=20
evidence corroborated Dr. Yazdi=3Ds general=20
premise that Ritchie was unreasonable in refusing =
adjustments. Dr.=20
Stevenson testified that the denture could have been made more=20
comfortable, stable, and functional with adjustments. =
Although he=20
testifiedCand the=20
jury seemingly acceptedCthat the=20
denture would have had to be remade regardless of any adjustments, =
his=20
testimony supported Dr. Yazdi=3Ds theory=20
that Ritchie was unreasonable. Drs. Yazdi and Flinn =
testified that=20
the denture could have been adjusted in every wayCa premise=20
the jury did not accept. Regardless of the fact that the =
jury did=20
not completely accept their testimony that the denture could be =
made=20
perfect, the jury could use that testimony to support a finding =
that=20
Ritchie was negligent when she refused to make the denture =
comfortable and=20
functional while awaiting a new denture. Although Ritchie argues =
that Dr.=20
Yazdi=3Ds=20
testimony and her records were self-serving and unreliable, it was =
within=20
the province of the jury to assess the credibility of the =20
witnesses. City of Keller, 168 S.W.3d at =
819.
We hold=20
the evidence is factually sufficient to support the =
jury=3Ds finding,=20
and we overrule this issue.
C. =20
Cost Allocation
In her=20
next issue, Ritchie contends the trial court abused its discretion =
when it=20
ordered that each party would bear its own costs. Neither =
party=20
seems to dispute Ritchie=3Ds status=20
as the prevailing party for purposes of Texas Rule of Civil =
Procedure=20
131. However, the parties dispute whether good cause existed =
for the=20
trial court to apportion the costs as it did pursuant to Texas =
Rule of=20
Civil Procedure 141, which states A[t]he=20
court may, for good cause, to be stated on the record, adjudge the =
costs=20
otherwise than as provided by law or these rules.@
Regarding=20
costs, the trial court stated in its final judgment:
Because=20
every cause of action, with the exception of negligence against =
Dr.Yazdi,=20
was either non-suited or a directed verdict was granted, the Court =
finds=20
that each party should bear its own costs in this =
matter.
Rule 141=20
requires both good cause for deviation from the rules and that the =
trial=20
court=3Ds=20
justification be stated on the record. =
Furr=3Ds=20
Supermarkets, Inc. v. Bethune, 53=20
S.W.3d 375, 376 (Tex. 2001). Good cause is an elusive =
concept=20
and varies from case to case. Id. at 376B77. =20
Typically, though, good cause means that the prevailing party=20
unnecessarily prolonged the proceedings, unreasonably increased =
costs, or=20
otherwise did something that should be penalized. Id. =
at=20
377. We review the trial court=3Ds use of=20
Rule 141 under an abuse of discretion standard. See =
id. at=20
376.
Here, the=20
trial court determined that each party should bear its own costs =
because=20
Ritchie asserted numerous claims against three parties and yet =
only one=20
claim against one party was presented to the jury. Implicit =
in the=20
trial court=3Ds=20
statement of good cause on the record is that Ritchie filed =
numerous=20
claims against all three defendants below, of which only one had a =
basis=20
in law or fact, and thus Ritchie should bear her own costs. =
The=20
trial court=3Ds basis=20
for good cause was not an abuse of discretion, and we overrule=20
Ritchie=3Ds issues=20
related to costs, including her argument that her expert fees =
should be=20
taxed as costs against appellees.
D. =20
DTPA Claim
In her=20
final issue, Ritchie alleges the trial court erred when it granted =
appellees=3D =
motion=20
for summary judgment on her DTPA claims. According to =
Ritchie, Dr.=20
Yazdi is liable under the DTPA because she intentionally =
misrepresented=20
how the denture should fit. Therefore, Ritchie argues, the =
DTPA=20
claim can be maintained under the reasoning of Sorokolit v. =
Rhodes,=20
889 S.W.2d 239, 242B43 (Tex.=20
1994) (holding that a DTPA suit against a physician is not =
precluded for a=20
knowing misrepresentation or breach of express warranty in cases =
in which=20
a physician warrants a particular result). We =
disagree.
Claims for=20
physician negligence cannot be maintained under the DTPA. =
See=20
id. at 242. However, if the claim rests not on the =
alleged=20
breach of the standard of care, a DTPA claim may lie against a=20
physician. See id. Merely recasting a claim as=20
something other than negligence will not allow the claim to =
survive as a=20
DTPA claim. See id. Yet, that is precisely what =
Ritchie=20
attempted with her pleadings.
Ritchie=20
relies heavily on the Sorokolit case for the proposition =
that her=20
pleadings were not attempting to recast her claims. Yet the=20
Walden case is on point and controlling. Walden v. =
Jeffery, 907 S.W.2d 446 (Tex. 1995). Notably, =
Walden was=20
issued a little more than a year after Sorokolit and =
distinguishes=20
the facts of the two cases. Id. at 447B48. =20
In Walden, the Texas Supreme Court held that Jeffery was =
simply=20
recasting a medical negligence case involving dentures. =
Id.=20
at 447B48. =20
The supreme court reasoned that the case was not a DTPA case =
because=20
Jeffery=3Ds=20
pleadings established, as a matter of law, that the Aproviding=20
of dentures was an inseparable part of Walden=3Ds=20
rendition of medical services.@ =20
Id. at 448. The same is true here. All of=20
Ritchie=3Ds claims=20
are inseparable from Dr. Yazdi=3Ds=20
rendition of medical services and the breach of the standard of=20
care. Therefore, we overrule Ritchie=3Ds final=20
issue.
III. Conclusion
We hold=20
that the trial court erred by not awarding pre- and post-judgment =
interest=20
to Ritchie. Therefore, we reform the judgment to award =
pre-judgment=20
interest in the amount of $170.52, and to award post-judgment =
interest in=20
the amount of six percent per year from the date of the final =
judgment,=20
September 12, 2005, to the date that such judgment is paid, =
excluding only=20
the extension of time to file Ritchie=3Ds brief=20
granted on appeal. We overrule Ritchie=3Ds=20
remaining issues and affirm the judgment as modified.
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Memorandum Opinion filed May 22, 2007.
Panel=20
consists of Justices Yates, Anderson, and Hudson.
Appellant has not raised any =
issues in this=20
appeal as to Apple Dentists or =
Dr.=20
Bijan.
Ritchie also argues there is =
Ano evidence to support the =
jury=3Ds finding that [she] proximately caused =
her own=20
harm through Dr. Yazdi=3Ds failure to perform a gross =
scaling.@ However, the jury was not asked =
to make=20
specific findings as to each alleged act of negligence. =
Because=20
there is ample evidence in the record to support the=20
jury=3Ds finding of contributory negligence, we =
need not=20
address this specific argument.
Ritchie raised the expert fees =
issue as a=20
separate argument. Yet we need not reach it separately =
because, even=20
if we were to agree with Ritchie that expert fees in a medical =
malpractice=20
case may be taxed against the losing party, she would not be =
entitled to=20
them in light of the trial court=3Ds order that each party should bear its =
own=20
=
costs. |