The opinion
ACCEPTED
01-14-00301-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/29/2015 10:03:29 PM
CHRISTOPHER PRINE
CLERK
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
1/29/2015 10:03:29 PM
01-14-00301-CV
CHRISTOPHER A. PRINE
Clerk
DEANA POLLARD SACKS
Appellant,
vs.
THOMAS F. HALL
and
THOMAS F. HALL, D.D.S, M.S., P.A.
Appellees
ON APPEAL FROM THE COUNTY COURT AT LAW
COURT NO. 3, CASE NO. 919405,
HARRIS COUNTY, TEXAS
APPELLANT’S REPLY TO BRIEF OF APPELLEES
David J. Sacks Brad Beers
SACKS LAW FIRM BEERS LAW FIRM
State Bar No. 17505700 State Bar No. 02041400
2323 S. Shepherd Dr., Suite 825 5020 Montrose Blvd., Suite 700
Houston, Texas 77019 Houston, Texas 77006
Telephone: 713-863-8400 Telephone: 713-654-0700
Facsimile: 713-863-0502 Facsimile: 713-654-9898
david@sackslawfirm.com bbeers@beerslaw.net
ATTORNEYS FOR PLAINTIFF,
DEANA POLLARD SACKS
ORAL ARGUMENT REQUESTED
01-14-00301-CV
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITY ........................................................................................iv
ARGUMENT .............................................................................................................1
I. OBJECTION:
SACKS OBJECTS TO THE FACTUALLY INACCURATE
STATEMENTS MADE IN HALL’S RESPONSE AND ASKS THE
COURT NOT TO ACCEPT THEM AS TRUE. ............................................. 1
A. Contrary to Hall’s statement in his response, he never told Deana
“he would continue treating her, but in order to do so, she must pay
Hall the amount that she owed”. (page 2) .................................................. 2
B. Contrary to Hall’s statement in his response, Sacks never stated at
Trial “Dr. Hall said that he would not treat her unless she paid the
money he owed her”. (An apparent Freudian slip here) (Hall
response page 3, para 2). ............................................................................3
C. Contrary to Hall’s statement in his response, Hall was not “forced
to spend over $150,000 in attorney fees” and was not forced to pay
attorney fees because he did not have an army of attorneys
working for him without pay. (page 3)....................................................... 5
D. Contrary to Hall’s statement in his response, Hall did not perfectly
place orthodontic braces on Appellant’s teeth (page 2) ............................. 7
E. Contrary to Hall’s statement in his response, Sacks simply did not
stop coming to Hall (page 2) ...................................................................... 8
II. THERE IS NO EVIDENCE OF PRESENTMENT
(Relates to Point of Error I) ...........................................................................11
A. Consistent with Hall’s internal files, he testified at Trial that he
never asked Sacks for money. ..................................................................12
B. Sacks testified that no one at Hall’s office ever demanded or
requested money from her after she prepaid Hall $4,775 for a 36
month treatment plan that failed after only a few months. ......................13
C. Hall’s second of three internal ledgers (generated 3/20/2007 at
3:35PM) pertaining to a $1,220 contract never entered into by the
parties cannot be considered presentment of a claim, especially
with Hall’s April 18, 2007, response to the complaint with GHDS
admitting that a refund was owed to Sacks (DX10@A93) and
Hall’s subsequent internal ledger reflecting a zero balance on the
Sacks/Hall contract. (DX1@74)...............................................................18
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page ii
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III. HALL’S REFUSAL TO SEGREGATE RECOVERABLE FROM
UNRECOVERABLE ATTORNEY FEES REQUIRES REVERSAL
(Relates to Point of Error II) ..........................................................................24
IV. IT IS UNCONTESTED THAT HALL DID NOT PERFORM 100%
OF THE SERVICES AGREED TO UNDER THE PARTIES’ ONLY
CONTRACT; THEREFORE THE $1,220 AWARD IS
UNSUPPORTED BY THE EVIDENCE AND MUST BE
REVERSED.
(Relates to Point of Error III, IV, & V) .........................................................26
V. ON THE FACE OF THE FORM CONTRACT DRAFTED BY
HALL, THE INSURANCE BENEFITS ESTIMATED BY HALL
WERE ASSIGNED BUT NOT RECEIVED, NECESSITATING A
NEW (SECOND) CONTRACT BETWEEN THE PARTIES TO
DEAL WITH ASSIGNED, UNPAID INSURANCE BENEFITS,
AND NO NEW CONTRACT WAS EVER CREATED OR SIGNED
BY THE PARTIES.
(Relates to Point of Error VI) ........................................................................28
CONCLUSION ........................................................................................................31
PRAYER ..................................................................................................................32
CERTIFICATE OF SERVICE ................................................................................33
CERTIFICATE OF COMPLIANCE .......................................................................33
APPENDIX ..................................................................................................................
7. June 6, 2006 Financial Contract (PX1 RR V.11, P.2])
8. Hall Chart Maintained on Sacks (PX2 [RR V.11, PP 3-4])
9. Hall Claims Sent to Aetna regarding Sacks (DX10@A80-88
[RR V.12 PP 335-343])
10. Hall April 18, 2007 Letter to the Greater (DX10@A90-93
Houston Dental Society Regarding Sacks [RR V12 PP 345-348])
11. Hall Internal Ledgers (DX1 @ 68, 69, 74)
12. Legal Bills (DX18)
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page iii
01-14-00301-CV
INDEX OF AUTHORITY
Cases
Amir v. International Bank of Commerce, 419 S.W.3d 687 (Tex. App. -
Houston [1st Dist.] 2013, no pet.) ....................................................................... 30
Ashford Partners v. Eco Resources Inc., 401 S.W. 3d 35 (Tex. 2012)....... 31
Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132 (Tex. 1994) ......................... 31
Gonzalez v. Mission American Ins. Co., 795 S.W. 2d 734 (Tex. 1990) ..... 30
Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex.
1976) ............................................................................................................................. 30
Rules
Tex. Civ. Prac. & Rem. Code Ann. § 38.002 .............................................. 23, 31
Tex. R. App. P. 38 ...........................................................................................................2
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page iv
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON
01-14-00301-CV
DEANA POLLARD SACKS
Appellant,
vs.
THOMAS F. HALL
and
THOMAS F. HALL, D.D.S, M.S., P.A.
Appellees
ON APPEAL FROM THE COUNTY COURT AT LAW
COURT NO. 3, CASE NO. 919405,
HARRIS COUNTY, TEXAS
REPLY TO BRIEF OF APPELLEES
TO THE HONORABLE JUSTICES OF SAID COURT:
Appellant, Deana Pollard Sacks (herein referred to as “Sacks”), submits this
reply to the Brief of Appellees Thomas F. Hall and Thomas F. Hall, D.D.S., M.S.,
P.A. (herein sometimes collectively referred to as “Hall”).
ARGUMENT
I. OBJECTION:
SACKS OBJECTS TO THE FACTUALLY INACCURATE
STATEMENTS MADE IN HALL’S RESPONSE AND ASKS THE
COURT NOT TO ACCEPT THEM AS TRUE.
01-14-00301-CV
Appellees submitted their brief in this case on December 18, 2014. Within
this response, there are a series of factually inaccurate statements in his statement
of the case that cannot be relied upon. Perhaps that is why he failed to make even
one record cite. Tex. R. App. P. 38. (See Hall’s Response at 2-5).
Below is a chart of examples:
A. Contrary to Hall’s statement in his response, he never told Deana “he
would continue treating her, but in order to do so, she must pay Hall the
amount that she owed”. (page 2)
Hall never told Sacks she owed money and should pay anything for past
services. Hall cites nowhere in the record for such a statement, and none exists.
Hall did testify clearly and unequivocally on the subject, and specified that he
never asked Sacks for money. Specifically:
Q. [By Mr. Travis] In this case, Ms. Pollard, did you ever send
her a collection letter?
A. [Dr. Hall] We never did.
Q. Did you ever call her up and ask her to pay?
A. Not to my knowledge.
(RR V.5, P.75, LL.9-23).
Q. [By Mr. Travis] You never sent her a collection letter?
A. [By Dr. Hall] We never asked her for the money or sent her a
collection letter.
(RR V.5, P.106, LL.2-4).
Contrary to the unsupported statement made in his response, Hall never
testified that he asked Sacks for money.
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B. Contrary to Hall’s statement in his response, Sacks never stated at Trial
“Dr. Hall said that he would not treat her unless she paid the money he
owed her”. (An apparent Freudian slip here) (Hall response page 3,
para 2).
This is probably a Freudian slip by Hall, but it is true that according to
Hall’s records (PX2 [January 24, 2007, entry]; DX10@92-93) and common sense,
Hall did owe Sacks a refund. However, Sacks’s testimony on this subject is clear.
Q: [By Mr. Travis] Have you ever been asked to pay more than
$5,996.25 to Dr. Hall?
A: No. I was never asked to pay more than $4775, ever.
(RR V.4, P.68, LL.16-19).
Q: Did anybody say there was any problem with the billing or that
you owed more money on July 12, 2006?
A: No.
Q: What about your next visit on August 2, 2006?
A: No one said anything about supposedly owing money ever.
(RR V.3, P.139, LL.14-19).
Q. As of January 9, 2007, nobody had ever said,
"Oh, by the way, you owe us money," Dr. Hall's office?
A. No.
(RR V.3, P.153, LL.4-6).
Q. Did Glenda Johnson or Dr. Hall or anybody from
that office ever say, "You now have to pay us $1,220"?
A. No, no one has ever said that.
(RR V.4, P.15, L.24 – P.16, L.1).
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Q. [By Mr. Travis] You said you never saw the bill until you saw
this lawsuit?
A. [By Sacks] I never got a bill.
Q. You never got a bill.
A. I was never presented with a bill.
(RR V.4, P.124, LL.14-18).
This is Sacks’s only testimony on the presentment issue.
Hall does try to mischaracterize testimony related to Sacks’s transferring her
treatment. After it was clear that the original treatment with Orthoclear trays failed,
a second treatment plan with braces on the top teeth was formulated. This second
treatment plan (with upper braces instead of trays) was going to start after the root
canal and crown work Sacks underwent from October 2006 through January 2007
was completed. Hall wanted to be paid more money for the future contemplated
work on the new, second treatment plan which was necessitated after Hall’s
original treatment plan (putting teeth-torqueing Orthoclear trays on severely
infected teeth and gums) failed. Ultimately, Sacks discontinued seeing Hall,
created an entirely new orthodontic treatment plan with the new dentist and
basically started over (RR V.3, PP.154-155, L.7; RR V.4, P.18, L.3-13, P.18, L.21
– P.19, L.1) paying $5,200 for the new treatment plan with another dentist.
(PX15@31, 35-36).
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Sacks’s testimony was consistent with Dr. Hall’s testimony on this issue, as
Dr. Hall testified on several occasions that he never asked Sacks for money. For
example:
Q. [By Mr. Travis] In this case, Ms. Pollard, did you ever send
her a collection letter?
A. [By Dr. Hall] We never did.
Q. Did you ever call her up and ask her to pay?
A. Not to my knowledge.
(RR V.5, P.75, LL.9-23).
Q. [By Mr. Travis] You never sent her a collection letter?
A. [By Dr. Hall] We never asked her for the money or sent her a
collection letter.
(RR V.5, P.106, LL.2-4).
In any event, contrary to Hall’s suggestion in his brief, Sacks made no such
admission at Trial, and the Freudian slip is noteworthy.
C. Contrary to Hall’s statement in his response, Hall was not “forced to
spend over $150,000 in attorney fees” and was not forced to pay
attorney fees because he did not have an army of attorneys working for
him without pay. (page 3)
Hall had at least two attorneys throughout the pre-trial and trial of this case
(see appearance sheets on RR V.1 through V.7; see also DX18) and never paid a
penny. This exact question was posed to Dr. Hall at Trial. Specifically:
Q. [By Mr. Beers] You have not paid any attorney's fees in this case,
have you?
A. [By Dr. Hall] No.
(RR V.5, P.4, LL.16-18)
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 5
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As a side note, it was stated by Hall’s counsel that any attorney fees were
paid by Hall’s insurance company. (RR V.5, P.5, LL.9-10). 1 In fact, when
reviewing the attorney bills offered by Hall, they are clearly bills to a carrier to
address the defense of the medical negligence and DTPA claims brought in this
case. (See DX18 [Attorney bills]) (Appendix 12).
So Hall had a free ride on any contract claim against Sacks and the claims he
brought against Aetna and Employees Retirement System of Texas (ERS). (SCR
31-38 [Dr. Hall’s petition against Aetna and ERS], 39-41 [Aetna’s Answer], 42-44
[ERS Plea to Jurisdiction]; CR155-57, 190-91 [Dr. Hall’s non-suits]). (DX18).
Curiously, Hall includes attorney time and expenses associated with him suing
third parties (Aetna and ERS) in his claim against Sacks. (DX18) (Appendix 12).
These are the same attorney bills, paid by a malpractice carrier, which Hall
claims he could not segregate. Hall failed and refused to segregate any time spent
on his significant motions for summary judgment or motions to dismiss the
medical negligence and DTPA claims from his contract claim (all of which
motions were unsuccessful) or his claims against third parties. (RR V.6, PP.116-
121).
In any event, contrary to the uncited statements in Hall’s brief, he paid zero
attorney fees.
1This is a subject not normally commented on, but, Hall incorrectly represented to this Court
multiple times that he paid attorney fees, and he did not.
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 6
01-14-00301-CV
D. Contrary to Hall’s statement in his response, Hall did not perfectly
place orthodontic braces on Appellant’s teeth (page 2)
Hall did not place braces on Sacks’s upper teeth. He fitted her for Orthoclear
trays. Hall’s original treatment plan called for braces on the lower teeth and called
for Orthoclear trays on the upper teeth. (PX2@1).
Hall did not complete the original treatment plan for braces on Sacks’s lower
teeth and Orthoclear trays on her upper teeth when Sacks discovered that using the
tight, teeth-torqueing Orthoclear trays caused unusual and excruciating pain due to
pre-existing infected and inflamed upper teeth roots which Hall failed to disclose
before starting the orthodontia treatment. (RR V.4, P.187; RR V.3, P.154; RR V.6,
PP.33-37; PX10). X-rays Hall ordered and reviewed prior to beginning
orthodontic treatment of Sacks clearly showed large infections and failing
restorations that Hall did not disclose to Sacks; the undisputed evidence at trial was
that the clarity of the pre-existing infections in Sacks’s teeth at the time Hall began
orthodontic treatment of her without informing her of the infections was a “10” on
a scale of 1-10 – very obvious to any dentist reviewing the X ray. (RR V.6, P.33,
L.19 – P.37, L.1). The “clear” style orthodontia appliances on her upper teeth, the
“Orthoclear” brand aligners, are a series of tight fitting trays that move your teeth
(RR V.3, P.145) that are very painful when they apply torque to infected teeth and
gums. (RR V.3, P.143-45). When Sacks discovered, through another dentist, the
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 7
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pre-existing infections and other dental problems that Hall did not disclose, she
immediately sought care from another dentist to take care of the infections, root
canals, and crowns that were needed (PX16@7, 8, and 16; PX13@11, 16-21;
PX12@12, 16), which then meant that the Orthoclear aligners would no longer fit
and were worthless. (RR V.3, P.154, LL.1-18; RR V.4, P.20; see RR V.5, P.41,
LL.4-9, DX1@21, DX10@A91).
If a patient, fitted with Orthoclear trays, later has dental restorations
performed on their teeth such as fillings, crowns, root canal therapy, the trays will
no longer fit. (Id; DX1@21). The dental restorations change the positioning of the
teeth and the trays may no longer fit. They did not fit Sacks after her necessary root
canals and crowns. (Id.). Even Hall recognizes this fact. (RR V.5, P.41, LL.4-9).
So, there was nothing perfect about Hall’s work or treatment plan. In fact,
Sacks had to pay an additional $5,200 for a second treatment plan to another
dentist to accomplish the same work Hall was paid to perform. (PX15@31, 35-36).
E. Contrary to Hall’s statement in his response, Sacks simply did not stop
coming to Hall (page 2)
Sacks did not simply stop coming. After informing Hall about the pain
caused by the Orthoclear trays torqueing on teeth with pre-existing, severe
infections/root canal needs in October 2006, (RR V.3, PP.142-144) she spent
several months addressing the problems.
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 8
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10/12/2006 Dr. Salazar worked on tooth 2 to try to get rid of the infection.
(PX12@16).
12/20/2006 Sacks has appointment with Endodontist Alawahdi. Diagnosis for
root canal therapy on tooth #2 and tooth #4. (DX4@5-6). Performed
root canal therapy on tooth #2. (PX6@5, 6, 20; PX16@16; RR V.3,
P.146, LL.23-25).
12/22/2006 Sacks has appointment with Dentist DeJongh for second opinion,
who recognizes need for root canal therapy on tooth #2 and tooth #4.
(PX13, P.2, LL.11-20; DX9@10). DeJongh recognizes several
failing restorations that must be addressed. Id. Recommends
finishing root canal therapy initiated with tooth #2 and to initiate root
canal therapy with tooth #4 with current endodontist or with
DeJongh. Id.
12/27/2006 Sacks has appointment with Endodontist Alawahdi to finish root
canal therapy on tooth #2. (PX16@8, 16).
01/18/2007 Sacks has root canal performed on tooth #4 with Dr. Alawahdi.
PX16@16).
After the root canals and crowns were done, the Orthoclear no longer fit and
would never fit again. (RR V.3, P.148, L.25 – P.149, L.7). (Impressions of aligners
taken prior to new crowns resulted in aligner trays not fitting over the new
crowns). (RR V.3, P.145; see DX1@21; see RR V.5, P.41, LL.4-9).
Since the Orthoclear trays were of no use, a second treatment plan was
developed where braces would be used on the top teeth to solve the problem (since
the Orthoclear trays no longer fit after the root canals and crowns) Hall initially
agreed to re-do the upper orthodontic treatment with braces (a new treatment plan)
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 9
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at no additional charge. (RR V.3, P.154-155, L.7). Hall later decided he wanted to
be paid more money if he did any future treatment with Sacks. (RR V.4, P.18,
LL.3-13; DX10@91[Treatment]).
Hall fitted the Orthoclear tray on infected teeth, roots and gums in need of
root canals and crowns without disclosing the infections to Sacks, causing her to
experience excruciating pain and rendering the tight-fitting tooth-moving trays
useless after the root canals and crowns were completed, as the crowns changed
the shape of Sacks’s teeth so that the trays did not fit over the crowns. (RR V.3,
PP.142-144) Ultimately, Sacks hired another orthodontist to create a second
treatment plan of braces on the top teeth instead of Orthoclear trays. (PX15@31,
35-36). Sacks paid the new dentist $5,200 for the orthodontic treatment. (Id.)
Sacks did not just stop coming to see Dr. Hall as he suggests. The pain from
the teeth torqueing Orthoclear trays on infected teeth, roots and gums that Dr. Hall
failed to recognize and inform Sacks of (RR V.6, P.33, L.19 - P.37, L.1 [Dr.
DeJongh testimony]) caused her to address the health needs of her teeth. Sacks
underwent several months (October 2006 – January 2007) of root canal therapy
and crown work as reflected by the medical record with:
1.) Dr. Salazar (PX12@16),
2.) Dr. Alawahdi (DX4@5-6; PX6@5, 6, 20; PX16@16; RR V.3, P.146,
LL.23-25), and
3.) Dr. DeJongh (PX13, P.2, LL.11-20; DX9@10).
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II. THERE IS NO EVIDENCE OF PRESENTMENT
(Relates to Point of Error I)
Contrary to Hall’s unsupported statements in his brief, he never made a
demand for payment from Sacks. The reason is simple. The two year original
treatment plan with the one year additional retention period using Orthoclear failed
due to Hall’s failure to disclose severely infected teeth and gums to Sacks before
creating tight-fitting trays that were worthless after Sacks obtained the necessary
dental care before orthodontia was safe and appropriate. The pre-root canal
therapy/pre-crown Orthoclear trays would not fit over the new crowns and were of
no use after the root canals and new crowns. (RR V.3, P.145, P.148, L.25 – P.149,
L.7; see DX1 at 4; see also RR V.5, P.41, LL.4-9).
In any event, treating a patient for 6 months on a 24 month treatment plan
with an additional 12 month retention period could not possibly entitle any
professional to the upfront money paid by Sacks. So, Hall offered a partial refund.
This partial refund, suggested by Hall, is reflected in his internal records
(PX2) (Appendix 8) and correspondence to the Greater Houston Dental Society
(DX10@93-94) (Appendix 10). Specifically:
• Hall’s January 24, 2007, entry on his file (PX2) reflects that he
owed and offered Sacks a $1,820 refund after he ceased being
Sacks’s orthodontist. Hall discussed the refund with Dr.
DeJongh on February 5, 2007. (PX2).
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• Hall’s April 18, 2007, response letter to the Greater Houston
Dental Society reflects that on January 24, 2007, he owed Sacks
a refund and offered Sacks a refund of approximately 40% of
the treatment fee Sacks paid in advance, prorated on the time,
treatment, consultations, and expenses. This letter was written
many months after Hall ceased being Sacks’s orthodontist,
which he thereafter reduced to a zero balance. (DX10@93).
• Hall’s April 18, 2007, response letter to the Greater Houston
Dental Society also reflects that he owed Sacks a $650 refund.
This letter was written many months after Hall ceased being
Sacks’s orthodontist, after he had months to review his records,
which he thereafter reduced to a zero balance by essentially
paying himself exactly the amount he owed Sacks to avoid
refunding her any amount. (DX10@93).
Whether the refund should have been $650, $1,820, or more, the undeniable
fact remains that based on Hall’s records and Hall’s response letter to the GHDS,
Sacks was due a refund. Therefore, the fact that Hall testified under oath that he
did not request more money from Sacks should not come as a surprise: Hall owed
Sacks money, not the other way around. The jury verdict against Sacks is irrational
and reflects a complete disregard of the undisputed evidence or prejudice, or both.
A. Consistent with Hall’s internal files, he testified at Trial that he never
asked Sacks for money.
During Trial, Hall was specifically asked if he ever demanded money or
payment from Sacks. His answer was “no”.
Q. [By Mr. Travis] In this case, Ms. Pollard, did you ever send
her a collection letter?
A. [By Dr. Hall] We never did.
Q. Did you ever call her up and ask her to pay?
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A. Not to my knowledge.
(RR V.5, P.75, LL 9-23).
Q. [By Mr. Travis] You never sent her a collection letter?
A. [By Dr. Hall] We never asked her for the money or sent her a
collection letter.
(RR V.5, P.106, LL.2-4).
Hall’s uncontested testimony on this subject is consistent with his internal
records reflecting that he owed Sacks a refund (whether it be 40%, $1,820, $650,
more or less). This explains why Hall in no way ever presented a claim for any
amount supposedly owing from Sacks to Hall: people do not demand money from
people to whom they owe money. (PX2 [January 24, 2007, entry and February 5,
2007, entry]; DX10@93-94).
In Hall’s brief, he incorrectly suggests that in January 2007, Hall “began
attempting to obtain payment from Sacks….” (Hall’s Brief at 21). Hall has no
record cite to support this position and none exists. Hall’s testimony above is clear
on the subject, specifying that he never asked Sacks for money.
B. Sacks testified that no one at Hall’s office ever demanded or requested
money from her after she prepaid Hall $4,775 for a 36 month treatment
plan that failed after only a few months.
Sacks’s testimony was clear, consistent, and undisputed at Trial.
Q: [By Mr. Travis] Have you ever been asked to pay more than
$5,996.25 to Dr. Hall?
A: [By Sacks] No. I was never asked to pay more than $4775, ever.
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 13
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(RR V.4, P.68, LL 16-19).
Q: Did anybody say there was any problem with the billing or that
you owed more money on July 12, 2006?
A: No.
Q: What about your next visit on August 2, 2006?
A: No one said anything about supposedly owing money ever.
(RR V.3, P.139, LL 14-19).
Q. As of January 9, 2007, nobody had ever said,
"Oh, by the way, you owe us money," Dr. Hall's office?
A. No.
(RR V.3, P.153, LL 4-6).
Q. Did Glenda Johnson or Dr. Hall or anybody from
that office ever say, "You now have to pay us $1,220"?
A. No, no one has ever said that.
(RR V.4, P.15, L.24 – P.16, L.1).
Q. [By Mr. Travis] You said you never saw the bill until you saw
this lawsuit?
A. [By Sacks] I never got a bill.
Q. You never got a bill.
A. I was never presented with a bill.
(RR V.4, P.124, LL.14-18).
Sacks’s testimony concerning never having been asked to pay any amount of
money more than the amount she had prepaid Hall ($4775) under the June 6, 2006,
contract for the original treatment plan of lower braces and upper Orthoclear was
consistent and undisputed at trial.
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Hall points to testimony questioning Sacks as to why Sacks transferred her
treatment to another orthodontist. Sacks testified that she was transferring her
treatment to another orthodontist because Hall told her that he wanted more money
for the new, second treatment plan proposed by Hall, which included braces
instead of Orthoclear on her top teeth. (RR V.3, P.143–P.155, L.7; see
DX10@A91) No contract was signed on this second proposed treatment plan, and
it never materialized, because Sacks balked at paying Hall more money for a new,
second treatment plan that was necessitated by his original botched plan,
particularly since his botched plan caused her such excruciating pain that could
have been avoided had Hall disclosed her infections before wrongfully starting
Orthoclear tray orthodontia on severely infected teeth. (RR V.3, P.143-P.155, L.7).
Specifically, the testimony:
Q. On January 24th, 2007, was there a phone conversation or telephone
conference with you by anybody from Dr. Hall's office?
A. I spoke to Dr. Hall on a date around that time. I don't remember the
date; but, yes, we had a conversation right around that time. So, it
must be the right date.
Q. Was he offering or requesting you to transfer your treatment to
somebody else?
A. He refused to treat me any longer, unless I paid him more money.
...
Q. Help me understand. This entry in Dr. Hall’s records, Defendant’s
Exhibit 1, “Patient refused the offer to transfer for TX” which means
treatment. Did he offer to let you transfer to somebody else?
A. He said he wasn’t going to treat me any longer, unless I paid him
more money.
(R.R. V.4, P.18, LL.3-13; P.18, L.21 – P.19, L.1) (Emphasis added).
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These sentences are almost identical, and in both, Hall asks for more money
to CONTINUE treatment under a newly-proposed second treatment plan (putting
new braces on Sacks’s top teeth in lieu of Orthoclear) UNLESS Sacks paid him
more money. By the plain meaning of this testimony, Sacks could walk away OR
pay Hall more money for future treatment under Hall’s new proposed second
treatment plan. Sacks rejected Hall’s new, second treatment plan and transferred
her case. (PX2 [January 24, 2007, January 26, 2007, and February 5, 2007,
entries]; DX1@84; DX10@A91-92). The testimony misconstrued by Hall refers to
an option for Sacks either to pay more for Hall’s new, second treatment plan, or to
transfer her case to another dentist. Under the plain meaning of this testimony,
Sacks was given the option of walking away and foregoing additional treatment
from Hall pursuant to the new, second proposed treatment plan. This is a far cry
from a demand for payment for incomplete services pursuant to Hall’s original,
botched treatment plan, which was rendered useless due his failure to disclose the
infections. Indeed, after Sacks rejected Hall’s new, second treatment plan, the
parties’ discussion turned to what amount Hall owed Sacks on the incomplete
original contract. (PX2 [January 24, 2007, January 26, 2007, and February 5, 2007,
entries]; RR V.5, P.31, LL 19-21; DX10@92-93).
More importantly, this entire line of questioning explained why Sacks
transferred her treatment to another orthodontist after Hall refused to adhere to his
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prior agreement to re-do his incompetent original treatment plan at no additional
costs to Sacks. (RR V.3, PP.143-155, L.7; DX10@A91). After Hall agreed to start
a new, second treatment plan because his first plan failed, Hall audaciously asked
for additional money to re-do his botched work under the proposed new, second
treatment plan, and Sacks said no and hired another dentist to do the second
treatment plan (and paid him $5,200) (PX15@31, 35-36), so the parties went their
separate ways. Sacks sought a refund, and Hall admitted that he owed a refund on
multiple occasions thereafter. (PX2 [January 24, 2007, entry]; DX10@93-94).
The questioning regarding transferring Sacks’s treatment that Hall points to
focused on January 24, 2007, the date the parties discussed the proper refund
amount due to Sacks after Sacks rejected Hall’s proposed second plan and instead
transferred her case. This is the date the parties talked and discussed the
appropriate refund to Sacks because Hall’s original treatment plan failed early on
and never even came close to completion. Hall offered $1,820 according to his
hand written notes on Sacks’s chart (PX2 [January 24, 2007, entry]) (Appendix 8)
and thereafter discussed Sacks’s transfer options and the refund Hall proposed to
Sacks with Dr. DeJongh according to Hall’s hand written notes. (PX2 [February 5,
2007, entry]) (Appendix 8).
Additionally, when responding to a complaint filed by Sacks with the
Greater Houston Dental Society (“GHDS”), after reviewing his records carefully,
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Hall represented to the GHDS that on January 24, 2007, he offered Sacks a refund.
(DX10@93-94) (Appendix 10). He stated that the refund due on January 24, 2007,
was $650. (DX10@93) (Appendix 10).
Whether Hall was refunding $1,850 or $650, the undisputed evidence
conclusively shows that the discussion on January 24, 2007, turned to the proper
refund amount due Sacks after Sacks rejected Hall’s proposed new, second
treatment plan (for which there never was a contract). (PX2 [January 24, 2007,
January 26, 2007, and February 5, 2007, entries][Appendix 8]; DX10@A90-93
[Appendix 10]).
No matter how Hall tries to mischaracterize Sacks’s testimony, the evidence
is clear. No one asked Sacks for money for services under Hall’s original treatment
plan (the failed plan contemplated by the only financial contract ever executed) on
January 24, 2007, or at any other time.
C. Hall’s second of three internal ledgers (generated 3/20/2007 at 3:35PM)
pertaining to a $1,220 contract never entered into by the parties cannot
be considered presentment of a claim, especially with Hall’s April 18,
2007, response to the complaint with GHDS admitting that a refund was
owed to Sacks (DX10@A93) and Hall’s subsequent internal ledger
reflecting a zero balance on the Sacks/Hall contract. (DX1@74).
Hall suggests that a portion of one of his three internal ledgers is somehow a
demand for payment to Sacks. The three internal ledgers are attached as Appendix
11 for convenient reference. (DX1@68, 69, 74). (Appendix 11). The ledgers are
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dated 3/20/2007 at 3:33PM (DX1@68); 3/20/2007 at 3:35PM (DX1@69), and
6/18/2007 at 3:38PM (DX1@74). The last of the three ledgers reflects a zero
balance. It is significant to note that the March 20, 2007, ledgers were generated
the day after Sacks’s records were picked up from Hall at her attorney’s request.
(DX1@80-81, 83).
1. Hall’s second internal ledger [generated on 3/20/07 at
3:35PM] pertains to a $1,220 contract never entered into by
the parties.
Hall’s second internal ledger (the 3/20/2007 at 3:35PM internal ledger)
(DX1@69) (Appendix 11) specifies that it is contract #6372 with an original
contract amount of $1,220 (DX1@69) with a balance due of $459. However, it is
undisputed that the parties never entered into a contract with an original
contract amount of $1,220. Receiving an internal ledger in a mass document
production that references a contract Hall and Sacks did not have cannot be
presentment of a claim under Chapter 38. It is uncontested that Sacks and Hall only
had one contract, which was contract #6330, set forth on both other ledgers
reflecting a zero balance. (DX1@68 and 74) (Appendix 11). The ledger2 reflecting
“contract #6372” with an original contract amount of $1,220 appears to be Hall’s
attempt to comply with the condition precedent of his own financial contract
requiring a new, second contract between the parties if insurance did not pay
2Created the day after Sacks’s files were retrieved from Hall at her lawyer’s request. (DX1@80-
81, 83).
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assigned benefits. However, it is also undisputed that the parties never entered into
a second contract of any kind, and Sacks cannot be liable on a second contract that
she never agreed to and never executed. (PX1; RR V.5, P.31, LL.19-21). (See infra
Section 5).
Hall’s first internal ledger (3/20/2007 at 3:33PM) (DX1@68) (Appendix 11)
and third internal ledger (6/18/2007 at 3:38PM) (DX1@74) (Appendix 11) refer to
“contract 6330” and both reflect a zero balance on the parties’ (the only contract
Sacks signed) only executed contract. It is undisputed that the parties never entered
into a second contract in the amount of $1,220 or any other amount. (RR V.5, P.31,
LL.19-21). The ledger Hall relies upon in his brief is of no assistance to him, as it
is exclusively related to a $1,220 contract that the parties never had. It is certainly
not in evidence, and Sacks has never even seen a draft of a contract in the original
amount of $1,220.
2. Hall’s April 18, 2007, response to the complaint with GHDS
admits that a refund was owed to Sacks.
Sacks filed a complaint against Hall with the GHDS after their doctor/patient
relationship terminated. (See DX10@90). Hall responded to Sacks’s complaint in
writing on April 18, 2007. (DX10@90-93) (Appendix 10).
The zero balance found on Hall’s most recent internal ledger dated
6/18/2007 (DX1@74) is consistent with Dr. Hall’s April 18, 2007, written
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response to Sacks’s complaint that was filed with the GHDS (DX10@A90-93) that
states Professor Sacks had a $0.00 balance.
Hall’s response to Sacks’s GHDS complaint admits that he did not come
close to performing the work Sacks paid for, and also admits that Hall owed Deana
Pollard Sacks a refund. Specifically, Hall wrote:
In a phone call January 24, 2007 I offered Deana Pollard [Sacks] a
refund of approximately 40% of the treatment fee [paid in advance
by Sacks], pro-rated on the time, treatment, consultations and
expenses.
(DX10@A92). (Appendix 10). (Emphasis added). On the next page of the
letter, Hall specified that he offered Sacks a refund of $650 as of the time he
stopped treating her, but then he unilaterally offset the $650 he claimed he
owed Professor Sacks for two telephone conversations and mailing Sacks’s
dental file to Sacks, Hall’s way of avoiding the refund he owed Sacks.
(DX10@A93). (Appendix 10). At the end of Hall’s complaint response
letter to the GHDS, Hall made clear that there was a zero (0) balance
between Hall and Sacks. (DX10@93) (Appendix 10).
Hall’s clear letter of April 18, 2007, reflecting a zero balance was
subsequent in time to the 3/20/2007 at 3:35PM internal ledger reflecting an
original contract amount of $1,220. This phantom contract (if one was ever drafted
by Hall) in the original amount of $1,220 is not in evidence and has never been
seen by Sacks. But even if the obvious is ignored and Hall’s second internal ledger
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is considered to have any meaning to Sacks, she is entitled to rely upon a clear
letter penned by Hall stating there is no money due a month after the second of the
three ledgers was created on 3/20/2007 at 3:35PM. In sum, Hall’s ultimate, most
recent conclusion was that no money was due to either party. (DX10@93;
DX1@74).
Additionally, even if Hall made a claim for payment under the original,
botched treatment plan (and there is NO evidence to support this), Sacks would be
entitled to rely on Hall’s later statements that either Hall owed Sacks money or
there was a zero balance on Sacks’s account. In his April 18, 2007, letter to the
Greater Houston Dental Society, Hall specified that as of January 24, 2007, he
owed Sacks a refund, and as of April 18, 2007, there was a zero balance between
the parties. (DX10@92-93) (Appendix 10). Hall’s repeated admissions that Sacks
owed him nothing, after he had months to review his records, render his absurd
contract claim no more than a strategic attempt to punish Sacks for pursuing the
refund he admitted to owing her.
3. Hall’s June 18, 2007, internal ledger regarding Sacks
contract reflects a zero balance.
Hall’s June 18, 2007, internal ledger regarding Sacks reflects that Sacks has
a zero balance with Hall. (DX1@74). This is the last internal ledger created by
Hall. Sacks should also be able to rely upon the zero balance reflected in this
document. This ledger is later in time than the 3/20/2007 at 3:35PM ledger that on
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its face applies to a contract in the original amount of $1,220, which Sacks is a
stranger to. Hall’s argument regarding the second ledger makes no sense and
should be disregarded.
Presentment of a claim is not supposed to be guess work for the person
trying to evaluate the claim pursuant to Tex. Civ. Prac. & Rem. Code Ann. §
38.002. Hall failed to present a claim to Sacks at any time in any amount because
he knew he owed Sacks a refund. (PX2; DX10@92-93). The Texas Legislature
requires presentment of a claim before attorney fees can be assessed to meet due
process demands. Not only did Hall fail to present a claim to Sacks, his admissions
of owing her money made her secure in the fact that he could not legitimately be
awarded attorney’s fees. Sacks’s due process rights would be horribly violated if
an attorney fees award were allowed to stand under the facts of this case.
Admitting to a person that you owe her money, then creating a ledger reflecting an
amount owing on a new contract that was never signed, then admitting to a
regulatory board that you owed her money but that now no money was owed to
either party cannot possibly meet the due process notice requirements specified in
Tex. Civ. Prac. & Rem. Code Ann. § 38.002. Sacks was never on notice that Hall
could get a fee award which renders the fee award a due process violation even if
Sacks had owed Hall money, and the record is abundantly clear that she did not
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owe him a dime, never was presented with a bill or claim, and – to the contrary –
was expecting a refund.
III. HALL’S REFUSAL TO SEGREGATE RECOVERABLE FROM
UNRECOVERABLE ATTORNEY FEES REQUIRES REVERSAL
(Relates to Point of Error II)
Hall claims that he was unable to segregate recoverable from unrecoverable
fees. Not one hour. Not one minute. Not one dollar of expenses.
Sacks’s original brief discussed all the defensive claims Hall was addressing
where attorney fees were not recoverable (Appellant Brief 53-56). Sacks also
addressed Hall’s claims against third parties such as Aetna and Employers
Retirement System of Texas that Hall voluntarily dismissed. (SCR 31-38 [Hall’s
petition against Aetna and ERS]; 39-41 [Aetna’s Answer]; 42-44 [ERS Plea to the
jurisdiction]; CR 155-57 [nonsuit of ERS]; 190-91 [nonsuit of Aetna]).
Attorney fees for services and fees associated with claims against third
parties should have been segregated and Hall refused to do so.
When reviewing the 56 pages of attorney fee bills, one can only come to the
conclusion that virtually all the time reflected therein was in defense of negligence
and D.T.P.A. claims against Hall. (DX18). (Appendix 12). A non-exclusive list of
some of the attorney fees and expenses reflected in their bills that should have been
segregated from Hall’s contract claim:
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1.) Hall’s objection to Plaintiff’s expert witness report and motion to dismiss
negligence case. (DX18@8, 26);
2.) Hall’s motion for summary judgment on DTPA claim. (DX18@1, 3, 4, 5,
7, 8, 10, 11, and 26);
3.) Hall’s no evidence motion for summary judgment on tort claims.
(DX18@21, 26, 29, 30, 31, and 32);
4.) Hall’s research on DTPA, negligence and negligence misrepresentation.
(DX18@2, 4, 7, 26);
5.) Hall’s defense of Sacks’s motion to seal her medical records after Hall
filed Sacks’s medical records in the public records. (DX18@44); and
6.) Virtually every page of the bills contains entries associated with dealing
with various doctors in defense of the medical negligence case. (See
DX18@4-54).
For sure, some time was devoted to the one page contract (PX2) but when
reviewing the bills, there is description after description addressing motions for
summary judgment or motion to dismiss the negligence claim and/or DTPA claim,
which were all denied. There are also hours upon hours devoted to doctors in
defense of the medical malpractice claim. (DX18).
Even a cursory review of DX18 (Appendix 12) establishes that segregating
recoverable from unrecoverable claims could have been done and should have
been done. Hall’s failure to do so is an additional reason for a reversal in this case.
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IV. IT IS UNCONTESTED THAT HALL DID NOT PERFORM 100% OF
THE SERVICES AGREED TO UNDER THE PARTIES’ ONLY
CONTRACT; THEREFORE THE $1,220 AWARD IS UNSUPPORTED
BY THE EVIDENCE AND MUST BE REVERSED.
(Relates to Point of Error III, IV, & V)
Hall is unable to respond to the undeniable fact that there is no evidence to
support a damage award of $1,220 found in question number 10, as Hall did not
perform all the services contemplated in the Parties’ three year contract, and put on
no evidence of damages (because not only did he sustain no damages, but he got a
windfall from Sacks’s prepayment of $4,775).
Hall’s brief tries to embellish Hall’s testimony. For example, Hall’s brief
states that Hall performed an “overwhelming majority” of the 36 month
orthodontic treatment plan in just 6 months. (Hall’s Response at 31). Of course,
nowhere does Hall testify that he performed an “overwhelming majority” 3 of the
orthodontia services and no such cite is found in his brief.
Hall’s records do reflect that he believes he performed 60% of the
orthodontia services and owed Sacks a 40% refund. (DX10@92). That is not
100%.
Sacks’s original brief carefully addresses this issue on pages 57-63. Hall’s
response does not seriously dispute the analysis. But briefly, the undisputed
testimony is that Hall performed only a fraction of the contract (6 months
3 Even an overwhelming majority is not 100%.
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performed on the original 24 month treatment plan (PX4) and zero months on the
additional 12 month retention period). (RR V.4, PP.158-59 [Hall]; V.5, PP.67-68;
PX2 [Hall]; PX4; DX10@A90-93). Additionally, there are Hall’s written
admissions about the value of the services he rendered per visit to Sacks ($225 per
visit according to Hall’s written statement to the Greater Houston Dental Society
(DX10@A92-93) or $135 per visit according to the insurance claims Hall sent to
Aetna (DX10@80-88)). Hall freely admitted at Trial that he did not treat Sacks for
at least 18 of the prepaid monthly visits and treated her for none of the 12 month
retention period. (RR V.5, P.67, L.18 – P.68, L.2). The contract states the value of
the full 36 month contract was $5,995. (PX2). The contract also reflects that Sacks
paid in advance $4,775. (PX2). Since Hall treated Sacks for less than six months
out of the twenty-four month treatment plan and zero months out of the additional
twelve month retention plan, it cannot be argued that Hall fully performed. There is
no evidence or at least insufficient evidence to support the award from question
number 10, and it must be set aside.
Hall testified that he was “only asking for the $1,220 that the insurance
didn’t pay…” (RR V.5, P.105, LL.20-21), and the jury awarded Hall the amount of
the estimated insurance benefits assigned but unpaid by Aetna - $1220. (CR243;
PX2). However, that would not be the appropriate measure of damages and in fact
was not the question asked by the Court to the jury in question number 10.
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(CR243). Based on the evidence in the record concerning the value of Hall’s
services rendered and not rendered and the amount Sacks pre-paid, reasonable
minds cannot differ that Hall did not perform 100% of the orthodontic services
agreed to as found in the jury’s answer to question 10. (CR 243) (Appendix 2).
The damage award must be set aside along with its associated contract
claim.
V. ON THE FACE OF THE FORM CONTRACT DRAFTED BY HALL,
THE INSURANCE BENEFITS ESTIMATED BY HALL WERE
ASSIGNED BUT NOT RECEIVED, NECESSITATING A NEW
(SECOND) CONTRACT BETWEEN THE PARTIES TO DEAL WITH
ASSIGNED, UNPAID INSURANCE BENEFITS, AND NO NEW
CONTRACT WAS EVER CREATED OR SIGNED BY THE PARTIES.
(Relates to Point of Error VI)
Hall suggests that since he did not receive payments directly from the
insurance company, he was not assigned benefits. (Hall brief at 34). The
assignment of benefits and the actual receipt of payment are not the same thing.
We would suggest that this is the precise reason Hall’s attorneys put in his contract
that in the event actual payment is not received by Hall from the patient’s
insurance company, “a new contract will need to be signed for the remaining
account balance”. (PX1) (Appendix 7).
On the face of Hall form contract, the insurance benefits Hall estimated were
assigned to Hall. (PX1) (Appendix 7). This scenario is specifically envisioned by
Hall’s Financial Contract, which requires a new, second contract to be signed to
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deal with assigned, unpaid insurance benefits, but it is undisputed that no new,
second contract was signed, and instead the parties parted ways.
Had there not been all the problems resulting from Hall placing the teeth
torqueing Orthoclear trays on infected roots and gums, and had the original
treatment plan been fully performed, presumptively, Hall and Sacks would have
entered into a second contract in the event no funds came from the assignment.
However, that did not happen.
Hall performed 6 months out of a 24 month treatment plan with an
additional 12 month retention period. Sacks went forward with the new (second)
treatment plan with braces on upper and lower teeth with a new dentist and paid
$5,200 to do so. (PX15@31, 35-36). Hall owed a refund. (PX2, DX10@A92-93).
The only question was the amount. Was it a $650, $1,820, or larger refund for at
least the services prepaid and not provided? Of course, no new contract was
prepared or signed in this case. (RR V.5, P.31, LL.19-21). There was nothing due
to Hall.
It cannot be seriously challenged that Hall had an assignment. Not only was
the assignment on the face of Hall’s form contract (PX1) (Appendix 7), Hall made
many claims to Aetna, Sacks’s dental insurance provider. (DX10@80-88)
(Appendix 9). In fact, on the claims submitted to Aetna by Hall, he represented
that Sacks had “authorized payment directly to the below named dentist [Dr.
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 29
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Hall] of the group insurance benefits otherwise payable to me [Sacks]”.
(DX10@A80, 82, 84, 86, 88 [in the middle of the claim where it says “signature on
file”]) (Appendix 9). The claim forms are signed by Dr. Hall. Surely, Hall would
not submit insurance claims “certifying” that Sacks’s benefits had been assigned to
him if they had not. (Id.)
Hall’s form Financial Contract, drafted by Hall, specified that “IF” insurance
does not pay, a new, second contract will be executed by the parties. It is
undisputed that no new, second contract was ever executed. (RR V.5, P.31; RR
V.4, P.16, L.147). The word “if” usually connotes intent for a condition precedent.
Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976);
Amir v. International Bank of Commerce, 419 S.W.3d 687, 691-92 (Tex. App. -
Houston [1st Dist.] 2013, no pet.). Since the condition precedent did not occur,
Sacks can have no liability on the contract before the Court pertaining to amounts
unpaid by insurance. See id. To the extent that there is ambiguity or internal
inconsistency in Hall’s contract, it is to be construed against Hall because Hall
drafted the contract. Gonzalez v. Mission American Ins. Co., 795 S.W. 2d 734, 737
(Tex. 1990). And, specific contract terms override more general contract terms, so
that Hall’s specific provision requiring a new, second contract between the parties
in the event of assigned but unpaid insurance benefits controls because this is what
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happened in this case. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132,133-34
(Tex. 1994).
Since there is a failure of a condition precedent, pertaining to the failure of
an insurance company to pay for any reason (no second contract was ever drafted
or signed by the parties), that provision regarding unpaid amounts of insurance
benefits is unenforceable. This is an additional reason the contract award must be
reversed and a take nothing judgment rendered. Of course, if the contract claim is
reversed, the associated attorney fee award cannot be maintained. Ashford Partners
v. Eco Resources Inc., 401 S.W. 3d 35, 40-41 (Tex. 2012).
CONCLUSION
The judgment for attorney fees against Sacks pursuant to Section 38.002
must be reversed because the conditions precedent to obtaining fees under Section
38.002 were never met (Hall neither pled nor proved that a claim in any amount
was ever presented to Sacks). The attorney fee award should also be reversed
because Hall failed to segregate fees for his recoverable from unrecoverable
claims. Additionally, the judgment for $1220 for breach of contract must be
reversed and a take nothing judgment rendered because the evidence does not
support the damage award in Question 10 and the condition precedent (a second
contract) to bringing a claim pertaining to the failure of an insurance company to
make payment has not been satisfied.
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PRAYER
Appellant Deana Pollard Sacks prays that the Trial Court’s amended final
judgment be reversed and a take nothing judgment rendered.
Alternatively, she prays that the amended final judgment be reversed and
remanded for further proceeding and for such other and further relief to which she
may be justly entitled.
Respectfully submitted,
/s/ David J. Sacks____________
David J. Sacks
SACKS LAW FIRM
State Bar No. 17505700
2323 S. Shepherd Dr., Suite 825
Houston, Texas 77019
Telephone: 713-863-8400
Facsimile: 713-863-0502
david@sackslawfirm.com
Brad Beers
State Bar No. 02041400
5020 Montrose Blvd., Suite 700
Houston, Texas 77006
Telephone: 713-654-0700
Facsimile: 713-654-9898
bbeers@beerslaw.net
ATTORNEYS FOR PLAINTIFF,
DEANA POLLARD SACKS
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 32
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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of January, 2015, a true and correct
copy of the foregoing has been served via certified mail, return receipt requested
and/or by facsimile upon the following:
Mr. Gregory R. Travis
Mr. John Woods
THE TRAVIS LAW FIRM
800 Wilcrest Drive, Suite 350
Houston, Texas 77042
Facsimile: 713-626-3801
/s/ David J. Sacks _________
David J. Sacks
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word
2010 and contains 7,290 words, as determined by the computer software’s word-
count function, excluding the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1).
/s/ David J. Sacks _________
David J. Sacks
APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 33
APPENDIX
7. June 6, 2006 Financial Contract (PX1 [RR V.11, P.2])
8. Hall Chart Maintained on Sacks (PX2 [RR V.11, PP.3-4])
9. Hall Claims Sent to Aetna regarding Sacks (DX10@A80-88
[RR V.12, PP.335-343])
10. Hall April 18, 2007, Letter to the Greater (DX10@A90-93
Houston Dental Society Regarding Sacks [RR V.12, PP.345-348])
11. Hall Internal Ledgers (DX1@68, 69, 74)
12. Legal Bills (DX18)
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DENTAL CLAIM FORM _ CARRIER mine AND ADDRESS _ _
W ' Check one:
5 Dentist’s pre-treatment estlmete Aetna I-lealthcarc
D6l'1llSl'55l8lEl'It8M oi actual services R0: Box 14094
Lexington, KY 40512-4094
1.Piiilerii's name 2. Relationship lo employee 3. Sex 4. Peilrinl blnhdele 5. ll lull ilmo student
first m.i.
““' X "' ' um DD YYYY '°"°°'
m-4>t Deana Pollard "“
spouse
**""
olheri_
|x 3 s | 1964
e. Emp=oyc4JsuIb=o'-bar name T 7 Employee/rubcolocr e. Emp-‘oyoelsubeeribor 9. Employer (company) dill to. Group rlumbor
end meiarg eddies: soc. sec or in number ori-rhdnvr name end acres:
Denna Pollard W DD Yyyy Texas Southern University
447 North Post Oak Lane I IJ9
Jm<OO
42 Houston 1 TX 77024 K w 3 5 6 . ._ _ 3.-/_6.3_26.0Q___
11. ls Iliitleni oavered by another 12-e. Name and address ol oanier(s) 12~b. Group no. ls) 13. Name and address oi other employer (s)
denial plan?
—- "’ —X"°
ll yes. complain 12-e.
ls patient covered by e medical
plan?
yes x no
714-I. Emplbyoelflbawlbot name 0 i4-b. Empiweelsutnaioor
61 dlllerent than pailenl‘s) 14-c. Emvkriieelsuhsuipor 15. Relationship in pailonl
soc. see. or I.D. number blrthdate
MM I DD I YYYY I-ell parent
)!DO‘IlZ— l—‘
1ZO—-4HID) spouse other
I have mvl¢we4 the following treetrnerit plan. I authorise rolceso of any Information
relating to this claim. lunderetend that I lm responsible for ell costs ol dental treatment. I hereby authorize payrnonl oi roe: ly to the below nsrned dontlel of the group lneuronce bonellto
otherwise payable to me.
‘J. Signature on file 6/7/2006 ' Signaturepn file
sigma ii>iiriiTni. or psmi ll minor) . Dale Slgned (Insured person) 6/7/2006
18. Nome oi Billing Denilsi or Denial Enllly Dela
0 211. ls treatment result N9 VII ll yes, enter orlol description and deter.
ol occupational
g THQMAS F. l-lALI,LDDS,,,MS.,PC. illness or injury? X
17. Address where pnyrneni should be remitted
25. ls treatment result ol
, auto ooo'denl7
Olry. Stare. Zip l . _X
29. Other accident’!
rI'lUQZ-r-r-
18. Denilsr Soc. Sec orT|.N. 19. Dentist license no.
\-Q
' 20 Drniisi phone no.
__
X
27. ll prosthesis, ls this (ii no. ienen loriepllcomeni) 20. Dlll ol prior
'-CZ
lnlllll piecemeal’!
pleoomenl
21. vistilele
eurreniserlee
Hfloceollruoneril
Ollion Hosp. ECF Other
' .Hadlooiepheor
models enclosed?
e es W
"“"Y7
X
-"0 28. In irutmoni lor ‘ ll services already Dole appliance! placed Mos. treel. re mlln.
ldentlly rnlsslng ieeili with fir’
6/6/zoos xl I l _ looih
30. Examination and ireermeni plan - List In order lrom __ no. 1 through tooth no. 32 - Use ohonlng system Xshe . °"""
orthodontics‘! commenced
6@/20 6F0, 24
Tooth Surleoe i Description cl service Dale service wn p,,,,,m,,, F” admjmsymywg
ll or (lndudlng x-rays, prophylaxis, materials used. etc) priormed mm“, use omy
lgllgy , Mo. ,Dey | Year g . rV
FACIAL
Fir? ~
Total treatment fee:
I;
:I ’.‘\4'
c-> - ~ ~ ii 5 r.\lQ"_Qir.\ 12
\l,.\\1_
I.\
6/6/2006 08090 7995.00
lg» _§' ‘-112! Initial payment amount: 4775.00
(E, ‘£7 UNGUAI. ‘£,l(5'
‘E. 0:‘ ‘gig’
F;In Estimated total length of treatment: 24
i iwiri a _l\iNVWU3d DlaFllUSiSI
K '3, (El C ass l malocclusion
Severe Crowding
- LINGUAI. L 4515-‘
iiilli
6‘(§a_i‘1;
-i8§'-rUPio‘_§wiPiiE=Rng}i NM
r\ “'5'
I."
Q1 21 sl
Deep overbite
Advanced Wear
5°)<. ('7
‘(.3
Treatment:
7’1:,5)
-,.$1: gi-s. 9=
Q’.Zfl ii§i 9° (st Retention therapy, indefinite term
FACIAL Comprehensive TX Adult Dentition
:i1.nomsiiisioiwiusiTo'ia6ivices T T ’
Future general dentistry alter orthodontics
Appendix 9
-—|\ F; l ..i.I' t E
l hereby oe ' roan‘ he be rm dlhltlhl ll mo
are the eclir E §§ ‘E4 charged and Millet: lo collect for t‘i\'<tee.p?o.::&r‘iis. M ' ". W m Q Total Fee
I I
°""°°“ 7995.00
'1 _
'- .
'-2'.
Y .
if
’
/
_ ,1 Max. Allowable
-1 mosiingonasii "i ’ _
o 115:1) 6/7/2006 l2:$8:34 PM 0,0 _ :i:;.7;- Ueerue umber Dole Dgdugublg
Carrier %
-1»... -
-" -I - - ' ""'
eeeeaeaaw
arm i r nr on A
°°
8
-..
I61 2605472001
J
A 000081
DENTAL CLAIM FORM , __ _ 7 7 CARRIER NINE AND KDORESS
7 Check one: 77
I Dentist‘: pre-treatment estimate P O Box
Aema 14094
Healthcare
X Dentist‘: statement ol actual services L'ex}ng‘°n, KY 405124094
7 771. Paaenra name 7 7 2. Rolalionshao to Omployoo a. Son 4. Panant hl7'17dat97 s. II ma um uu:7$0nt7 7
tnt mi ll-it X m I M“ Do
YYYY
I Deana Pollard
H1-()1! I
_ "1 _ M IX 3 5 I 1964
‘$50 OUII
s _ 2 mi H _ , _ V "1! _ _
G. Ernpioyuqlsuhsaioor name 7, Emoloyoelwaember 6. Ernabnelwesaou 9. Employer Ioannuvy) l0_ Group nunbev
arurnaihrqaawu; 00e:oe.ar|.D.nurnbor unmet: namaanaadonss
Denna Pollard W on WW Texas Southem University
447 Nonh Post Oak Lane
HI<-(Z
Ofl Houston TX 77024 -
11. ll patient mwnd by another 712-a. Nomi §nd7aodra7i0 oI ea7nIev(s)
I w0957672850l 3 I 5 It1964
I2-h. Group no. ts)
_
I I3. Name and mm; 0I other omotoyov ts)
876396020 0 77 7
dontal PUI7
HOPE
m X M
ll ya. complete I2-a
ls patient coveted by a medial
plan‘!
IQWZ-' _v- L»
I4-a. Employee/subacrbor name 14-be Emnloyoolsubauibet
[II dfllerent than panonra) 14-c Employaalwbswihor I5. Helatlomhip to patient
sot. soc. or l D number binhdata
Ill I OD YVYY all parent
ZO--(>3
I have vow/lowed the Iollovlng treatment plan. I unhortu nlaaae ol any lnlomutlon soousa nevi ‘
nlattng to ml: elalm. l underatand mat I am rnpanalblo tor all east: cl dental treatment. I Mnby Iuthorlae payment dlroe tly to the below named dentist at the group ln|utanee7h7en7aIlI-i 7
olhcnvlae payable to me.
. Signature on file l0/04/2006 Signature on file
Signed (Patient. or parent it minor] *_*&
C
10/04/2006
7Data77 77 7777 7 77 Signed (Insured person)
15. Name at Batting Dentist or Dental Entity Data
24.lsI1aatmentruutI "0 "I I ll yes enter brie! dasmptuon and dates.
THOMAS F. HALL DDS,.MS.,PC. at ecuputioul X
tllnns or m|u0y7
I7. Address when plymtml should be rammed
25. ls lIaalment1osull7ol
Z—|"|_ I919 North Loop West”#460 auto amount? X
Clty. State ZIP 7 7 7 7 7 7ii.Otnnr a70t:derti’.' 77
Houston, TX 77008 X
ta. Dlflhil Soc Soc. or 1.» u. to emu license no. 20. Dentist ohm no. zr. it ptumnia. is ma
(I m7, ream Ira vaptlaamentl 2!. Date oI pnor
-OZ XX-XXXXXXX 12970 I (7l3 862-8223 ""“'““'°""'""' X
2|. First visit tlltl 7 2. Phea at vullnant 23. Radioqrlplu 01 No You " placement
current anon 4 Help ser ovm modal! lndolod? X How
"WW" 2" " ""‘""'u:;.§"' e I
-N0- tl services already Date Iwbannas placed Mos, tro;l 7romam
06/06/200
Identity missing teem with ‘x’
I I I
ill. Examnanon and treatment plan LEI in order lrom tooth . through_ . dtamng ya I
3'3’/l,= " "" 06/06/2006 20
" * 6‘ Tooth ‘stmc. Dosm777‘7p7tton7oIlorv\u77 * no I tuothno 32-ljsq
DIIISQNIR *0 P,,,,,_,,,,,
7 75 7(Qr|7\7st_|a7\]m.7 77 777 7 7
F,7 7
I ,,,,,,,,,,m,,,,,
5 r
‘ I or (mdudlnq it-rays. nroohytaxta. malonala used. ate I portormod I mu,
Ietteri V V V _ i_ _ 549- I WYIYW M Ag ,
FACIAL
... ’_
tgt 7gn§I’.\
Total treatment fee: 06/06/2000 08090 7995.00
..' -' n’o\
_~ <-2,
- }"'_\')6.‘('2. 2
,'1 I1": ¢.\ I2 \’r\
r *1“"4 Initial payment amount: 4775.00
.5,
‘st I5):
:" LINGUAI.
win?‘
(gig,
‘E’ 2| Gel‘G
Estimated total length of treatment: 24
nu=- 3.
2mu mm 1;It nvwuu
MI
WE
_.
¢ ll] Diafgnosisz
C ass I malocclusion
'§'|§| it Qt‘? ‘ ‘ Severe Crowding
‘Q :| LINGUN. |§»‘_§'
Deep overbite
*2 1‘-I'-\.
1; _~ '_ »,\‘'->.
re'=' I‘ Advanced Wear
‘7 5 “Into!” 7 ¢'
\.3 75
,0‘ 2524 '6‘ 722 :1
Treatment:
‘"3107; (it5‘V
§ I Retention therapy, indefinite tenn
FEW. Comprehensive TX Adult Dcntition
I §__ Bonded maztillaty and mandibular appliances
Jl Romania I01 unusual semen: Future gcnernl?enti7s7try ailer orlhodontics 77 wu-
<-L.~_ I
‘ . 1_ ‘I-P‘..".-,.'
. '
Q_
R¢Sn_t>MtH-_¢<§ 0
(‘ax
“' '."'.'
7 bxY.‘ -L7.7-
' -__-
f_"t 7‘.
7.;.'
T
I~I'.
_ -'
;.-:.*r-1’.d~':;~l. '
V nW_ _. 3.::j_-’.-5‘.___
I hereby eartlty Inn the pmeeduru ll Ind by data have been completed and that the Ion autrnlttad
an the actual lee: I have charged I to too thou procedures. TotalFoo
Charged 7995.00 .-~
. I
Svvod|'IIaaaIvqD~nn|7 77 7 7 7 *7 12970
\.hInqN7\nhI r i 701:7 10/04/2006
77 7 Max.AlIowab1a __+_7 _-
Deductible . - T I
FD H4’) IWIH/7006 l70.$Z:27 AM -16. -lll
I
form Appund by the Cam"! wt (bunt-' cdry Pnqmm
AZIQUI KIT“. ISSXJATDN
7 Carrier
:5 77 ‘I5 _; _ AOO0082 |
lncm 061009575500 seq: 1009060-12s| ~'»
1’.-_ v____,,-
,. _4n.
I
A 000083
DENTAL CLAIM FORM 7 CARRIER Nfhti AND ADDRESS 7
Check one:
3 Dentlst's pre-treatment estimate Aema Healthcare
Dentist’s statement ol actual services P-O- Box 14094
Lexington, KY 40512-4094
I. Patient‘: name
IISI tn t. llll
2 Riiieiioriuiin to eriinleyse 3. set it. Patient oirvioate 5 ll lull tme stuueri:
"‘ ' strut DO WW 5””
fll—-I)‘ I Deana Pollard
5.ErnPI°YMlsuosatber name
X
1
W
sell
se
i
°"__
id
otter Ix; 5I1964m
7 Employeelsubsmber 8 Eimloyeelsuosaiher 7 9 Employer ifcortioanyi I0 Srouo ni/noer 7
one matting address soc see. orll) number DIIIIG ate name and address
Denna Pollard W DO WV, Texas Southem University
447 North Post Oak Lane
Il l<-(Z
OO 1-l0uston,TX 77024 __ w09576728S01 3 I 5 I|964 876396020
ll ls patient oovereo by another 12-a Nettie and aooiess ol cattiarisl t2-o Group no |s| 7 13. Name and aodress 9! other etrtpieyar -‘st
aentat plan?
MO)
yes >' -to
ll yes. complete 12-a.
is patient covered by a medical
plan’ _
IOWIZ— yes k rio
E I4-a. Etrioloyeelsuo saioer risi-re
. t4 - o . Emtilo y eeisuoserioer te-i; EI|'t9lQy9Q,'§|,|l7$Q1lDOl I5. Relationship to oatienl
tit drllerent than patient’s: soc sec or I.0 nurnoer
tr-rtttoate
uu on rvvv "ll WW
Z0-4); I I soouse otr~eri__
I have reviewed the Iotlosrlnq treatment plan. 1 euthortze releeee ol any lnlorrnetlon
relating to ttite etelrrt. I iinoereteno that I em responsible tor ell eoete ol dental treetmertt. risriiiiy siitrioitu psyiimit directly to the tisioii risr'ii3ii flenllll ol I'll group iriiiiisries ssiisttis
2.. ltenrlee oeyeole to me.
° Signature on file 12.-"712-"2006 . t Signature on file I2/12/2006
Signed (Patient. or parent il minor} Date Signed tinsureo person} 7 Date
I6 Name or Billing Dentist or Denial Entity 24 ls treatment result \= '" I Il yes, enter oriel aeseriptior and -aisles 7
_ _ ot occupational X |
I
IHOMAS F. HALL DDS,.MS.,PC.
i7 Aooress wrtere payment should be remitteo
77
~ii~~»~-W
25 ls treatment result ol
.
—I'P auto ar:o'ertnt" X I
City State. Zip 26 Other eaadeni? 1
U02 . , X
-lZl'|'l -
to Dentist Soe.7Sec erT.I N
2|. First visa esie
isirierit series
_
22. Pisee el lreltmertl
Orion Hose. ECF Oeier
1?,
15 Dental loense rio.
I 20 Dentist onorteno.
2:. Rseiiiqreoris or
mooee entseeeet
ii Yes
. "W
"WY?
27. ll prosthesis. is ttiis
initial olloerneritl
29 " ""'""'“ '°'
X ‘ ijirne reason lot ieoie0enent1- 2! Dare eiorer
alstarrient
-IUD llservioes already Date aoolienoes nlseee Mos 'ree' re Hill!‘
I 6r'6/2006 XI I I X I
ortnudortlml
X
oorrirnentled
enter:
6.-'6»-@2006 18
I loeritiry missing teetn with ‘x’ M. Examination and aeetment plan - List ll order lrorrt tooth no l through loom no, J2 - use matting system mourn.
This text is long and has been trimmed here. Open the source document for the complete record.