# Deana A. Pollard Sacks v. Thomas F. Hall and Thomas F. Hall, D.D.S., M.S. P.A. > Texas Court of Appeals, 1st District (Houston) · January 29, 2015 URL: https://www.frixlaw.com/law-library/cases/4045604 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** January 29, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4045604 ## Opinion text 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 01-14-00301-CV 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. APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 2 01-14-00301-CV 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). APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 3 01-14-00301-CV 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). APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 4 01-14-00301-CV 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 01-14-00301-CV 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 01-14-00301-CV 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 01-14-00301-CV 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 01-14-00301-CV 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). APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 10 01-14-00301-CV 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). APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 11 01-14-00301-CV • 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? APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 12 01-14-00301-CV 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 01-14-00301-CV (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. APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 14 01-14-00301-CV 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). APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 15 01-14-00301-CV 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 APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 16 01-14-00301-CV 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, APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 17 01-14-00301-CV 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 APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 18 01-14-00301-CV 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). APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 19 01-14-00301-CV 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 APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 20 01-14-00301-CV 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 APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 21 01-14-00301-CV 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 APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 22 01-14-00301-CV 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 APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 23 01-14-00301-CV 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: APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 24 01-14-00301-CV 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. APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 25 01-14-00301-CV 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%. APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 26 01-14-00301-CV 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. APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 27 01-14-00301-CV (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 APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 28 01-14-00301-CV 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 01-14-00301-CV 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 APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 30 01-14-00301-CV 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. APPELLANT’S REPLY TO BRIEF OF APPELLEES Page 31 01-14-00301-CV 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 01-14-00301-CV 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) H‘‘““‘h‘IH““rA‘“ l_‘W._'‘r1‘l “ _ y My y “H WZ &%7 V y‘N \N\ONE (O ‘V U 9“ _E/ __ .- _gs:?_inAyoé ‘_yl ‘\ ‘ “ m ity _‘L;}__ ‘T 1 J‘ N ‘ _A “Hi Y‘ __ ____ _ y \L1 ‘ _I‘ r“ ‘ “‘ yr '__ A\ r‘ k \\_* _ __\\‘ y r_ \1 \r ‘K _\\L E%§_ A N ‘ mfi°m§_un Q38“; \ 0883” “___ \ 93" Fix O OTiD l_‘;Oa.__a°;_3g__ PQ_ K: no D :D: 2_;_38__3 _3_ _O>3 “gags mD08; 3,8: DDmu g _ _ _0 PD __I OO_ _D 205:;r_g_ _u ___’: ‘Q ogg i ‘ 020:) [Ii _ _:3. |'m_|l'3_0 _ _g:_a___:_3g_D ?O Q_D22: >%__; _§;_ g_ °_fl2“ I5 Im>3 I'l:3! an?0:;°___ ‘, _ N Fm“D___:_ z_>532 _ g_ n_ °_ “ O o02“, g&___gQ __ O3_ 0r :“ ______a _ _ _:_ag_ ‘ 0033:; 0,_O2; _?4:; _‘ _83g_ ‘_ 2_ H O _G >a°:__uD _D O“'_u___ 0°52; __2a°_D _ °_ D >_O °Du02_ o°_=_°?O_ 2 __ 33°:_°_____ D_' u_D :8_;r| _ \_ !=_ _’o3£____o“ |_=l_3_| | 3 D _D ___D ___”D_ ___O:U _ _OI_ °:u mD _:3D° 2_D :_‘ g_8z__n ”_ _n°_“_fl°fl‘uJo3_s’m__ fl_°___°;_ °_ _m_ °_ _: x°_2_ D_ Ug_ u_ 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 JmiiriiTni. 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°)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\ _~ . 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- MtH-_¢' -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. Tooth Surtaoe‘ Desatptnrt olserviu I or 7 tirtduoirtp 1-rays. proohywus. materials used. etc.t 7 7 77 7 lieia servia pertorrtioo ‘ pmmmn Mn“, 1 For Fae adtnlnlettetlve tenet 7 Mo. I Day Ives! FACIAL ’ ” 5 We WY 1 Periodic Orthodontic Treatment Visit: 1 1.-'27-"2006 D8670 135.00 =~ _~.~ Z The occlusion was a Class l with a l00% deep bite. There was excessive wear to the lower incisors due to the deep bite. The panorex and full mouth x-rays revealed \ numerous teeth that had been treated endodontically (5 teeth) and others that had very deep restorations. The patient did not report any symptomatic teeth and there was no radiographic evidence to contraindicate orthodontic treatment. The periodontium was healthy and bone height within normal levels. CONSULTATION At the consultation l recommended orthodontic treatment in preparation for dental cosmetics. I suggested regular braces and D. Pollard told me she only wanted Invisalgn (clear tray) treatment. l advised her of the limitations and requirements of Invisalign and Appendix 10 :1:F.'frT"‘. * 1' 'i= it A 000090 Incu: o7os014s3sa1 seq: 0607010009] , ,/ _-''3 '20/200.7 _\ ' 3‘33'00 - ' PM \ /D My Ledger -- Deana Pollard/Denna Pollard Page‘ 1/ THOMAS F. HALL DDS,.MS.,PC. 1919 North Loop West #460 Houston, TX 77008 (713) 862-8223 Patient #2 5591 Patient name: Deana Polla rd Family #: 5395 Contract #1 6330 Responsible party: Denna Polla rd 447 North Post Oak Lane Houston, TX 77024 “ Treatment start date: Charge frequency: 6/6/2006 Ledger Type Monthly Billing option: Accounts Receivable Activity code: Past Due Original contract amount: Active Contract code: $6,775.00 Current due: Regular initial charge amount: $0.00 Regular Charge Amount: $4,775.00 Over 30 due: $0.00 Over 60 days p ast due: $0.00 Present Contract Balance: $0.00 $0.00 Over 90 days past due: Interest due: $0.00 I Remaining commitment: $0.00 P Patient home phone: $0.00 Amount Due Now: (713) 927-9935 $0.00 Responsible Party home phone: (713) 927-9935 Responsible Party work phone: Spouse's name: Spouse work phone: _ Date S Description Type Reference Debit Credit Balance 5/10/2006 M Models 5/10/2006 M Payment to Cu rrent _ $60.00 y $60. 00 6/6/2006 M Payment to Cu rrent CC A 9078 ($60.00 $0.00 CHK 2874 $4,775.00 ($4,775.00 6/6/2006 M START START $4,775.00 D $0.00 TOTALS: $4,835.00 $4,835.00 $0.00 U00U68 Appendix 11 THOMAS F. HALL DDS,.MS.,PC. 3-05-0931 ‘\ \ 8/20/2007 — 3335100 IT/I - edger. 4ZDeana PollardlDenna Pollard - Texas Southern U 1 Page‘ I _,. 1 THOMAS F. HALL DDS,.MS.,PC. 1919 North Loop West #460 Houston, TX 77008 (713) 862-8223 Patient #: 5591 Patient name: Deana Pollard Family #: 5395 Contract #: 6372 Responsible party: Denna Pollard - Texas Southem University/Aetna Healthcare 447 North Post Oak Lane Houston, TX 77024 Treatment start date: Charge frequency: 6/6/2006 Ledger Type Accounts Receivable Monthly Billing option: Activity code Past Due Original contract amount: Active Contract code: $1 ,220.00 Current due: Regular Initial charge amount: $0.00 Over 30 due: $51.00 Regular Charge Amount: $51.00 Over 60 days past due: $51.00 Present Contract Balance: $761.00 Over 90 days past due $51.00 Interest due: $300.00 Remaining commitment: $1,220.00 Amount Dtie Now: $0.00 Patient home phone: (713) 921-9935 $459.00 Responsible Party home phone: (113) 927-9935 Responsible Party work phone: Spouse's name: Spouse work phone: .__l , Date (II Description ‘ Tye Reference ‘ 6/7/2006 E START Debit Credit Balance j START $0.00 7/1/2006 Z Contract Cha "9 e $0.00 ' p 0/1/2005 Contract Charge $51.00 $51.00 1 9/1/2000 ZZ Contract Charge $51.00 $102.00 I 10/1 /2005 Z Contract Charge $51.00 $153.00 1 11/1/2006 Z Contract Charge $51.00 $204.00 12/1/2006 Z Contract Cha '9e $51.00 $255.00 $51.00 1/1/2007 .3Contract Charge $51.00 $306.00 2/1/2007 Z Contract Charge $357.00 , 3/1/2007 U Contract Charge $51.00 $408.00 $51.00 $459.00’ TOTALS: $459.00 $0.00 $459.00 000059 THOMAS F. HALL DDS,.MS.,PC. 0-05-0031 6”8’2°°7 ' 3’38‘°° PM Ledger -- Deana Pollard/Denna Pollard Page 1 THOMAS F. HALL DDS,.MS.,PC. 1919 North Loop West #460 Houston, TX 77008 (713) 862-8223 Patient #: 5591 Patient name: Deana Pollard Family #2 5395 Contract #: 6330 Responsible party: Denna Pollard 447 North Post Oak Lane Houston, TX 77024 I Treatment start date: 6/6/2006 Ledger Type Accounts Receivable Charge frequency: Monthly Billing option: Past Due Activity code: Active Contract code: Regular Original contract amount: $6,775.00 Current due: $0.00 Initial charge amount: $4,775.00 Over 30 due: $0.00 Regular Charge Amount: $0.00 Over 60 days past due: $0.00 Present Contract Balance: $0.00 Over 90 days past due: $0.00 interest due: $0.00 Remaining commitment: $0.00 Amount Due Now: $0.00 Patient home phone: (113) 921-9935 Responsible Party home phone: (113) 921-9935 Responsible Party work phone: Spouse's name: Spouse work phone: Date Description Type Reference Debit Credit Balance 5/1 0/2006 Models $60.00 $60.00 5/1 0/2006 Payment to Current CC 9078 ($60.00) $0.00 Comment: payment for models 6/6/2006 Payment to Current CHK 2874 ($4,775.00) ($4,775.00) Comment: payment for braces 6/6/2006 START START $4,775.00 $0.00 6/6/2006 Production Start $0.00 Comment: Original: $6,775.00 Initial: $4,775.00 Regular: $0.00 Balance: $2,000.00 Frequency: Monthly Interest: Late charge 6/6/2006 Contract Status Change $0.00 $0.00‘ Comment: From N to A 6/6/2006 Contract Balance Change $0.00 Comment: Contract Balance Change From $2,000.00 to $0.00 aetna ins disct 000074 THOMAS F. HALL DDS,.MS.,PC. 8.05.0031 TRAVIS 81 HAMMOND, P.C. 2700 Post Oak Blvd., Suite 900 Houston, Texas 77056 (713) 626-3800 December 09, 2008 In Reference To: Pollard Invoice #2430 Professional Services Hrs/Rate Amount A-1-1 6/2/2008 JRL Conducted researchmnder Texas DTPA as tie-in from 0.40 58.00 M8dlC8| Liability AC1. $145.00lhr ‘auses of action suit by plaintiff. GRT Draft and forward A Pollard‘s counsel. Telephone 0.00 116.00 conference and review e-mail $145.00/hr correspondence draft response to same. Receipt, review and analysis of Plaintiff's Petition and begin drafting 3.70 536.50 6/3/2008 GRT eview law cited in petition. $145.00/hr 0.20 29.00 6/0/2000 JRL Phone calls to _egardlngt $145.00/hr 0.50 72.50 6/10'/2006 JRL Research on eceptive Trade Practices Act and medical $145.00/hr liability cause . 1.00 145.00 6/17/2000 JRL Drafting of Answer and Request for Disclosure. $145.00/hr 2.30 333.50 6/10/2000 JRL Drafted Defendant's Request for Production of Documents, $145.00/hr Interrogatories, Request for Admissions. 1.30 188.50 6/10/2000 JRL Drafting of Answer and Counterclaims. $145.00/hr Research regarding i 2.40 348.00 6/20/2008 JRL Drafted Notice of Deposition for Deanna Pollard and Medical Authorization. $145.00/hr Revision of Answer and Counterclaims; revision of Discovery requests. Research on eceptive Trade Practices Act in medical liability act clap Phone call 5.80 841 .00 6/23/2008 JRL Revision to $145.00/hr Drafting Deceptive Trade Practices Act claims in addition to EXHIBIT Appendix 12  tabblzs‘ _ Page 2 Hrs/Rate Amount I 6/23/2008 GRT Receipt, review and revise Original Answer to Counterclaims. Receipt 1.80 261.00 and review of various e-mails fron- $145.00/hr 6/24/2008 JRL Completionweceptive Trade Practices Act causes of action 1.40 203.00 for medical neg igence. $145.00/hr 6/25/2008 JRL Drafting of Motion for Summary Judgment on Plaintiff's Deceptive Trade 5.60 812.00 Practices Act claims. $145.00/hr Research onfilvledical Liability Act claims. 6/27/2008 JRL Research on 3.10 449.50 Phone call to $145.00lhr Deceptive Trade Review Research Act and negligent Revision of Summary Judgment. GRT Receipt, review and analyze lengthy and various correspondence from 2.70 391.50 Plaintiffs counsel regarding demands, statements, facts and records. $145.00/hr 6/60/2000 JRL Phone call to-egarding — 1.70 246.50 $145.00/hr otion for Summary Judgment. MJP Review and revise discovery requests. (.8) 0.80 116.00 $145.00/hr For professional services rendered 35.50 $5,147.50 Additional Charges : 6/1/2008 Copying cost 23.00 6/13/2000 LEXIS 24-47 6/23/2008 Filing Fee - Beverly Kaufman, Harris County Clerk - Counterclaim Filing Fee 40.00 Total additional charges $87-47 A Total amount of this bill $5234-97 Please make checks payable to Travis & Hammond, P.C. E- TRAVIS & HAMMOND, P.C. 2700 Post Oak Blvd., Suite 900 Houston, Texas 77056 (713) 626-3800 January 26, 2009 ln Reference To: Hall Invoice #2433 Professional Services Hrs/Rate Amount 7/2/2008 JRL Drafting and revision of Hall's First Amended Answer to include 1.60 176.00 allegations of Sacks‘ misrepresentation regarding insurance coverage $110.00/hr and lack of payment for Hall's services. Revision of Hall's Request for Production of Documents, interrogatories, and Request for Admissions. 7/7/2008 JRL Review and revision of Hal’ nded swer. 3.00 330.00 Meeting with Dr. Hall $110.00/hr Review of medical recor s or a Research on 7/8/2008 JRL Revision of Hall's Amended Answer and Discovery requests. 4.10 451.00 Drafting of Notice to Produce Documents and Subpoena for Sacks‘ $110.00/hr Medical Records to Dr. Salazar. Review of Sacks‘ medical records for inclusion in Hall's Motion for Summary Judgment. Revision of Motion for Summary Judgment on Sacks‘ Deceptive Trade Practices Act claims. GRT Receipt and review and correspondence from Dr. Hall? 0.90 130.50 ‘ Telephone ‘conference with Dr. Thomas a $145.00/hr 7/9/2008 GRT Receipt and review of correspondence for Plaintiff's regarding release of 1.90 275.50 records. Review, revise Deposition of Written Questions and Subpoenas $145.00/hr to subsequent treaters. ~ JRL Drafted Notice of Subpoena and Subpoena's for Plaintiff's medical 2.00 220.00 records to Dr. Jones, Dr. De Jongh, Dr. Hablinski, and Dr. Mizell. $110.00/hr 7/10/2008 JRL Review and revision of Hall's Motion for Summary Judgment and 0.70 77.00 Plaintiff's Deceptive Trade Practices Act claims. $110.00/hr Phone Call with Dr. Hablinski regarding Plaintiff's medical records. Page 2 Hrs/Rate Amount 7/11/2008 JRL Research on eceptive Trade Practices Act-and medical 1.70 187.00 negligence $110.00/hr Revision of o ion for Summary Judgment on Plaintiff's Deceptive Trade Practices Act claim. 7/14/2008 JRL Travel to Dr. Hablinski's office for review and copying of Plaintiffs medical 0.70 77.00 records. $110.00/hr 7/16/2008 JRL Revision of Motion for Summary Judgment on Plaintiff DTPA claims. 0.30 33.00 $110.00/hr 7/17/2008 JRL Revision of Thomas Hall's discovery requests and Motion for Summary 0.70 77.00 Judgment on Plaintiffs Deceptive Trade Practices Act claims. $110.00/hr 7/22/2008 BNM Review and revise subpoena for Production of Documents for various 0.60 45.00 Dental Care Providers $75.00/hr GRT Review and file multiple subpoenas for records to all subsequent treaters. 1.50 217.50 $145.00/hr 7/28/2008 MJP Receiit and review Plaintiff's Request for Disclosure and discus‘ 0.10 14.50 $145.00/hr GRT Receipt and review correspondence from Plaintiffs counsel regarding 0.20 29.00 Request for Disclosure. $145.00/hr 7/29/2008 JRL Revision of subpoenas for medical records of Plaintiff. 1.70 187.00 $110.00/hr 7/31/2008 BNM Review and revise depositions on Written Questions for Custodian of 0.70 52.50 Records of Dental Care Providers $75.00/hr JRL Revision and drafting of subpoena as to Dr. Dassy Salazar, Dr. James W. 3.10 341.00 May, Dr. David De Jo ' M‘ hael Mizell. $110.00/hr I ah ne ca» el o lt Revision of Request for Adl'TllSSlOflS to Plaintiff and Defendant's otion for Summary Judgment on Plaintiff's Deceptive Trade Practices Act claims. 8/1/2008 JRL Edits to Deceptive Trade Practices Act Motion for Summa Jud ment 1.40 154.00 and Req est for Admission $110.00/hr 1" ' 1.30 188.50 8/4/2008 MJP Receipt and review documents responsive to subpoena to David De Jongh. $145.00/hr '8/5/2008 GRT Receipt and review of various e-mails from 0.40 58.00 Reply to same. Draft e-mai $145.00/hr ‘ Review e-mail from JRL Review and revision of Defendant's Request for Admissions. Gathered 1.00 110.00 'e$ea"=h_ $110.00/hr Page 3 Hrs/Rate Amount 8/6/2008 JRL Revision of Thomas Hall's Motion for Summary 0.80 88.00 Trade Practices Act $110.00/hr 8/7/2008 JRL Revision of Defendant's Request for Admissions to Plaintiff. 0.60 66.00 $110.00/hr 8/8/2008 GRT Review, revise and file First Set of Responses to Plaintiffs Interrogatories, 3.30 478.50 First Set of Request for Admissions's. Forst Set of Request for Production $145.00/hr of Documents, and Request for Disclosure. JRL Review records Plaintiffs Petition in preparation fo ' and 1.70 187.00 filin eeting wit $110.00/hr MJP Review and revise discovery requests including Requests for Disclosure, 1.80 261.00 Request for Production of Documents, interrogatories, and Requests for $145.00/hr Admissions. 8/13/2008 JRL E-mailcorres ondence witr/me arding 0.40 44.00 $110.00lhr t 8/14/2008 MJP Receipt and review documents responsive to subpoena to Michael Mizell, 1.30 188.50 DDS. Receipt and review documents responsive to subpoena to Frances $145.00/hr Jones, DDS. JRL Travel to Dr. Jones’ and Dr. Mizell s office 2.60 286.00 Telephone call with $110.00/hr 0/20/2000 JRL Drafting of— 0.70 77.00 $110.00/hr 0/21/2000 JRL Drafting 6* Prepared Defendant's 2.90 319.00 response to Plaintiff's Reiues or Discliiiiii. E-mail to— $110.00/hi‘ 8/22/2008 JRL Review of records of Plaintiff's documents received from subpoenas. 2.50 275.00 $110.00/hr 8/24/2008 JRL Revision of memorandum 1.20 132.00 $110.00/hr 8/25/2008 GRT Review and revise file Defendant's Response to Plaintiff's Request for 0.50 72.50 Disclosure. $145.00/hr 9/10/2008 GRT Receipt and review of correspondence from 0.20 29.00 $145.00/hr 9/15/2008 MJP Receipt and review D. Pollards responses to written discovery. 1.80 261.00 $145.00/hr Page 4 Hrs/Rate Amount 9/15/2008 GRT Receipt, review and analysis of Plaintiffs Responses to Defendant's 2.30 333.50 Request for Production of Documents, Request for Disclosure Re uest $145.00/hr for Admissions and First Set of Interrogatories. Reviewfi 9/23/2008 JRL Review of Plaintiffs Discovery Responses anc— 1.20 132.00 $110.00/hr 9/25/2008 GRT Draft and forward email correspondence to Dr. Hall regarding_ 0.30 43.50 $145.00/hr MJP Receipt and review Plaintiff's Expert Witness Designation and discuss 0.80 116.00 same with $145.00/hr JRL Receipt, review and respond to email correspondence with Dr. Hall. 0.20 22.00 $110.00/hr 9/29/2008 JRL 1.20 132.00 ‘ Receipt and review of Plaintiffs $110.00/hr 9/30/2008 GRT Receipt and review of Plaintiff's Expert Wl ne ' ion and thorou h 3.80 551.00 ieview and analysis of expert's report $145.00/hr For professional services rendered 61.70 $7,525.50 Additional Charges : 7/1/2008 Photocopies 101.00 7/18/2008 Postage 5.32 8/1/2008 Photocopies 96.00 8/18/2008 Recording Fee - Records (notary/supply fees) 65.00 8/27/2008 Filing Fee - Courthouse Connection - July 08 - Attempted Rush Subpoena to Smile Spa Dental 100.00 Filing Fee - Courthouse Connection - July 08 - Subpoena to Michael Mizell 65.00 Filing Fee - Courthouse Connection - July 08 - Subpoena to Dr. Frances Jones 65.00 Filing Fee - Courthouse Connection - July 08 - Subpoena to David De Jongh 65.00 9/1/2008 Photocopies 67.00 Total additional charges $629.32 Total amount of this bill $8,154.82 TRAVIS 81 HAMMOND, P.C. 2700 Post Oak Blvd., Suite 900 Houston, Texas 77056 (713) 626-3800 January 13, 2009 i In Reference To: Hall Invoice #2438 Professional Services Hrs/Rate Amount 10/2/2008 GRT Receipt and review of e-mail correspondence fromegarding 0.10 14.50 Deceptive Trade Practices Act Motion for Summary Ju gment. $145.00/hr 10/3/2008/01 Emaii1 2.10 231.00 Plaintiff's Dece tive rade Practices Act claim. 0 Phone callwith r. $110.00/hr . Haire6arsii €.i_-—-— For professional services rendered 36.10 $4,947.50 Additional Charges : 10/26/2009 Filing Fee- Notice of Filing Business Records Affidavit. 11.84 10/27/2009 Filing Fee- Certificate of Written Discovery 11-84 10/29/2009 Copying cost- October 2009 059-20 11/3/2009 Filing Fee- Motion to Compel Deposition of Plaintiffs Expert and Plaintiff. 11.84 12/1/2009 Copying cost- November 2009 236-40 Total additional charges $981-12 Total amount of this bill $5.928-02 Please make checks payable to Travis & Portele, P.C. TRAVIS 8r PORTELE, P.C. 2700 Post Oak Blvd., Suite 900 Houston, Texas 77056 (713) 626-3800 May 06, 2010 In Reference To: Hall Invoice #2886 Professional Services Hrs/Rate Amount 0.60 87.00 1/5/2010 GRT Receipt and review of correspondence from Plaintiffs Counsel regarding $145.00/hr matter. (.3) Receipt, review and analyze Plaintiff's Second Amended Answer. (.3) 0.90 72.50 1/7/2010 GRT Receipt, review and respond to e-mail correspondence from Plaintiffs $145.00/hr Counsel regarding Continuance. (.3)Telephone conference with C. DiFerrante regarding matter and Continuance. (.2) 0.40 58.00 1/8/2010 MJP Receipt and review Agreed Motion for Continuance from opposing $145.00/hr counsel. (0.4) 1.40 203.00 GRT Receipt and review of Plaintiffs Application for Continuance. (.6) Receipt $145.00/hr and review of correspondence from Plaintiffs Counsel and respond to same. (.5) Lengthy telephone conference with C. DiFerrante regarding dates. (.3) 0.10 14.50 1/12/2010 GRT Receipt and review of Plaintiffs Second Amended Answer to Defendant's $145.00/hr Counter-claim. 0.50 72.50 1/19/2010 GRT Draft and file Notice of Non-suit as to Aetna Dental. (.5) $145.00/hr 0.40 58.00 1/20/2010 GRT Receipt and review of correspondence from Plaintiffs Counsel regarding $145.00/hr new Trial Setting. 0.80 116.00 2/15/2010 GRT Receipt and review of various correspondence from_ $145.00/hr 0.70 101.50 2/23/2010 GRT Draft and file Unopposed Motion for Continuance. (.7) $145.00/hr 0.10 14.50 3/4/2010 GRT Receipt and review of courts trial order. (.1) $145.00/hr 0.10 14.50 3/8/2010 GRT Receipt and review Order for Trial Setting. (0.1) $145.00/hr — Page 2 Hrs/Rate Amount 3/12/2010 GRT Receipt and review of correspondence from—. 0.30 43.50 . -Respond to same. (0.1) $145.00/hr .121-i_____§i For professional services rendered 5.90 $855.50 Additional Charges : 1/19/2010 Filing Fee- Notice of Nonsuit for Aetna 11-34 1/31/2010 January Copying cost 6.80 2/1/2010 Copying cost-February 2010 3-20 2/23/2010 Filing Fee-Unopposed Motion for Continuance 11-34 Proposed Order in Unopposed Motion 3/26/2010 Copying cost- March 2010 9-20 Total additional charges $42-38 Total amount of this bill $898-38 Please make checks payable to Travis & Portele, P.C. THE TRAVIS LAW FIRM, P.C. 2700 Post Oak Blvd., Suite 900 Houston, Texas 77056 (713) 626-3800 July 12, 2010 in Reference To: Hall invoice #2938 Professional Services Hrs/Rate Amount _._i-___ 6/1/2010 JW Receipt and review letter and e-mail regarding production of Dr. Henwood 0.10 11.00 for deposition. $110.00/hr MJP Review and Revise correspondence from C. DiFerrante regarding 0.70 101.50 De-designation of Henwood and his deposition. (.2) $145.00/hr Review and Revise Plaintiffs 4th Supplemental Response to Requests for Disclosure and Expert Designation. (.2) Draft correspondence to C. DiFerrante regarding same. (.3) GRT Receipt and review of correspondence from Plaintiffs counsel 1.40 203.00 de-designating Dr. Henwood. (.2) Receipt and review of Plaintiffs Fourth $145.00/hr Supplemental Response to Requests for D cuments and Ex ert Designation it iraft correspondence t 6/2/2010 JW Receipt and review of Plaintiffs letter and e-mail regarding Designation of 5.20 572.00 Dr. Henwood and Dr. DeJongh. (.1) Research and analysis of Plaintiffs $110.00/hr strategy of de-designating Dr. Henwood as Defendant's Expert and then designating Dr. DeJongh. (2.3) Review and analyze Texas statutes, Ch7 requirements of Ex ert Report. (2.2) MJP Review and Revise E-mail from C. DiFerrante regarding Deposition of . 0.20 29.00 Henwood and De-Designation. (.2) $145.00/hr GRT Receipt and review of correspondence from Plaintiffs counsel regarding: 0.20 29.00 experts. (.2) $145.00/hi’ 6/3/2010 JW Review and analyze Plaintiffs e-mail concerning producing Dr. Henwood 1.10 121 .00 for deposition and implications of Plaintiffs de-designation of Dr. $110.00/hr Henwood and the implications to Plaintiffs case in light of Plaintiff A designating Dr. Henwood as a fact witness. W Page 2 Hrs/Rate Amount 6/3/2010 MJP Draft E-mail to C. DiFerrante regarding Henwood‘s Deposition (.3) 0.30 43.50 $145.00/hr 6/4/2010 MJP Review and Revise C. DiFerrante's response to email regarding 0.20 29.00 Henwood‘s status. (.2) $145.00/hr 6/7/2010 MJP Draft Subpoena for Henwood‘s Deposition. (.5) 1.00 145.00 Draft e-mail to C. DiFerrante regarding same. (.2) $145.00/hr Teleconference with Dr. Henwood regarding Deposition (.3) 6/8/2010 MJP Receipt and review Plaintiffs deposition notice of Dr. Henwood (.1) 1.10 159.50 Receipt and review emails from C. DiFerrante regarding Subpoena being $145.00/hr served ( 3) We w"h—ig Teleconference with Dr. Henwood regarding same. (.3) GRT Receipt and review of Plaintiffs Notice of Intent to take the deposition of 0.30 43.50 Dr. Henwood. (.3) $145.00/hr 6/9/2010 MJP _, . H Thorough review of all relevant pleadings and depositions in preparation for deposition of Dr Henwood 6 4 Draft e mail to 6.60 $145.00/hr 957.00 6/10/2010 MJP Complete Preparation for deposition of Dr. Henwood including outline for 6.70 971.50 cross identifying exhibits for use at deposition, and review of all available $145.00/hr medical records. 6/11/2010 MJP Draft and file Motion for Continuance (.7)Travel to and Attend deposition 8.20 1,189.00 of Dr. Henwood. (7.5) $145.00/hr GRT Receipt and review and revisions of Motion for Continuance. (.7) 0.70 101.50 $145.00/hr 6/16/2010 GRT Receipt and review of correspondence from Plaintiffs Counsel regarding 0.90 43.50 Motion for Continuance.(.3) $145.00/hr 6/17/2010 MJP Receipt and review Pfs Opposition to Motion for Continuance and Notice 1.50 217.50 of Hearing. (.3) Receipt and review Pfs No-Evidence Motion for $145.00/hr Summary Judgment on affirmative defense and continuances. (.5) Receipt and review Pfs Traditional Motion for Summary Judgment on Defendant's Counterclaim and affirmative references. (.5) Receipt and review e-mail from G. Travis to C. DiFerrante regarding: Motion for Continuance. (.2) GRT Receipt and review of various correspondence from Plaintiffs Counsel 2.60 377.00 regarding Motion for Continuance. (.5) Receipt and review of Plaintiffs $145.00/hr No-Evidence Motion for Summary Judgment. (.9) Receipt and review of Plaintiffs Opposition to Defendant's Motion for Continuance. (.8) Draft e-mail to Plaintiffs Counsel regarding Motion for Continuance. (.3) 6/18/2010 MJP Receipt and review Order on Trial Setting (.1) 0.10 14.50 $145.00/hr R Page 3 Hrs/Rate Amount 6/18/2010 GRT Receipt, review and analysis of Plaintiffs traditional Motion for Summary 1.30 188.50 Judgment on Defendant's Counterclaim and Affirmative Defenses. (1.2) $145.00/hr Receipt and review of Order for Trial Setting. (.1) 6/21/2010 MJP Draft e-mail to C. DiFerrante regarding Hearing on Motion for 1.40 203.00 Continuance and telephone conference with him regarding same. (.7) $145.00/hr Prepare for and attend hearing by telephone. (.7) 6/22/2010 MJP Receipt and review transcript of Dr. Henwood‘s deposition. 0.60 87.00 $145.00/hr 6/23/2010 MJP Receipt and review Order for_Trial Setting 0.10 14.50 $145.00/hr GRT Receipt and review of correspondence from the Court resetting Trial. (.1) 0.20 29.00 Receipt and review of correspondence regarding Discovery. (.1) $145.00/hr 6/24/2010 GRT Receipt and review of correspondence for Plaintiffs Counsel regarding 0.10 14.50 rescheduling Trial again. (.1) $145.00/hr 6/25/2010 GRT Receipt and review additional e-mails from Plaintiffs Counsel regarding 1.20 174.00 Trial Setting and respond to same. (.2) Receipt and review of $145.00/hr correspondence regarding receipt of Henwood Depositon. (.1) Briefly review deposition transcripts and highlights. (.9) 6/30/2010 MJP Thorough review of the depositions of Dr. Hall, Dr. Henwood and Plaintiff 9.40 1 ,363.00 as well as Plaintiffs Motion for Summary Judgment. (4.6) Draft outline for $145.00/hr responses and begin draft of both responses to Traditional and No Evidence Motion for Summary Judgment.(4.8) .iiii_i_Z_- For professional services rendered 52.80 $7,432.00 Additional Charges : 6/1/2010 Postage- June 2010 1 .22 Copying cost- June 2010 287-20 6/11/2010 Filing Fee- Motion for Continuance 12.96 -Exhibit A -Exhibit B -Proposed Order on Motion for Continuance Total additional charges $301 -38 Total amount of this bill $7.733-33 Please make checks payable to The Travis Law Firm, P.C. THE TRAVIS LAW FIRM, P.C. 2700 Post Oak Blvd., Suite 900 Houston, Texas 77056 (713) 626-3800 October 13, 2010 In Reference To: Hall invoice #2981 Professional Services _ Hrs/Rate Amount -ii-i 7/1/2010 MJP Legal research on 5.60 812.00 _ y _ . . ra response to $145.00/hr ion or Summary Judgment. 4.8) 7/2/2010 MJP Draft response to no-evidence Motion for Summary Judgment and file 4.80 696.00 same after organization of exhibits. (4.2) Draft amended answer and $145.00/hr continuance. (.6) . GRT Review and revise Defendant's 2nd Amended Answer and Counterclaims 3.70 536.50 ' (1 .7). Review and revise Defendant's Responses to Plaintiffs Partial $145.00/hr Summary Judgment (2.0). . 7/5/2010 GRT Draft correspdndence to Plaintiffs counsel regarding schedule (.2). 0.90 130.50 Receipt and review of various correspondence from Plaintiff's counsel $145.00/hr regarding trial date and rescheduling (.7). 7/7/2010 GRT Receipt and review of correspondence from Plaintiffs counsel regarding 0.40 58.00 trial setting, and respond to same (.4). $145.00/hr For professional services rendered 15.40 $2,233.00 Additional Charges : 7/6/2010 Deposition Costs for Robbie Henwood M.D. 445.00 7/27/2010 Copying cost July 2010 34.00 - _ Total additional charges $479.00 Total amount of this bill $2,712.00 Please make checks payable to The Travis Law Firm, P.C. THE TRAVIS LAW FIRM, P.C. 2700 Post Oak Blvd., Suite 900 Houston, Texas 77056 (713) 626-3800 November 29, 2010 in Reference To: Hall invoice #3044 Professional Services Hrs/Rate iwill 9/7/2010 GRT Receiit and review of correspondence home $145.0%fi3 43-5° For professional services rendered 0'30 $4350 Please make checks payable to The Travis Law Firm, P.C. THE TRAVIS LAW FIRM, P.C. 2700 Post Oak Blvd., Suite 900 Houston, Texas 77056 (713) 626-3800 February 11, 2011 In Reference To: Hall Invoice #3137 Professional Services Hrs/Rate Amount 11/19/2010 GRT Receive, review, and analyze Plaintiffs Motion to Seal Court Records. 0.80 116.00 Telephone conference with Plaintiffs counsel regarding matter. $145.00/hr 11/22/2010 GRT Receipt and review of various emails regarding Plaintiffs Motion to Seal 0.30 43.50 Court Records and receipt and review of notice of hearing regarding $145.00/hr same. For professional services rendered 1-10 $159-50 Please make checks payable to The Travis Law Firm, P.C. THE TRAVIS LAW FIRM, P.C. 2401 Fountain View Drive, Suite 400 Houston, Texas 77057 (713) 626-3800 _ April 11,2011 In Reference To: Hall invoice #3180 Professional Services Hrs/Rate Amount A 12/6/2010 JW Telephone conference with G. Travis regarding response to Motion to 2.10 304.50 Seal (.1). Review and analyze case law cited in Plaintiffs Motion to Seal $145.00/hr (1.1). Draft and revise Response to Motion to Seal (.9). GRT Begin review of file to begin preparing for trial. 1.50 217.50 $145.00/hr 12/7/2010 JW Review and revise Response to Motion to Seal and prepare issues for 0.70 101.50 hearing. $145.00/hr GRT Revise and file Defendant's Response to Plaintiffs Motion to Seal ouit 0.50 72.50 Records .2. Recei tand rev‘ ‘ o dence from $145.00/hr 12/8/2010 GRT Attend hearing and argue against Plaintiffs Motion to Seal Records (2.7). 3.80 551.00 Telephone conference with Plaintiffs counsel subsequent to hearing (.2). $145.00/hr Review proposed order and reject same (.1). Telephone conference with court explaining need for ruling (.2). Draft email to Plaintiffs counsel regarding Motion and possible order (.2). Receipt and review of various email correspondence from Plaintiffs counsel regarding same (.4). 12/9/2010 GRT Receipt and review of various correspondence from‘; 0.70 101.50 $145.00/hr 12/10/2010 GRT Receive, review, and analyze Plaintiffs Second Supplemental Answers to 4.70 681.50 Defendant's First Set of interrogatories, Plaintiffs Fifth Supplemental $145.00/hr Responses to Request for Disclosure, Plaintiffs First Supplemental Responses to Defendant's Request for Admissions, Supplement to Plaintiffs Second Amended Petition. 12/13/2010 GRT Receipt and review of correspondence from Plaintiffs counsel regarding 0.20 29.00 discovery and respond to same. $145.00/hr 12/14/2010 GRT Receipt and review of correspondence regarding proposed continuance 0.20 29.00 (.1). Telephone conference with Plaintiffs counsel regarding continuance $145.00/hr (.1). — Peee 2 Hrs/Rate Amount 12/15/2010 GRT Receipt and review of various correspondence from Plaintiffs counsel 0.50 72.50 regarding continuance (.2). Telephone conference with Plaintiffs counsel $145.00/hr regarding same (.3). 0.20 29.00 12/16/2010 GRT Receipt and review of correspondence from K. lack regarding continuance and respond to same. $145.00/hr 0.30 43.50 12/17/2010 GRT Receipt of various correspondence from Plaintiffs counsel regarding matter (.1). Draft email correspondence regarding continuance and $145.00/hr discovery issue (.2). 0.90 130.50 12/21/2010 GRT Receipt and review of Plaintiffs Motion for Continuance (.1). Draft response to same (.2). Receipt and review of various emails from $145.00/hr Plaintiffs counsel regarding resetting and respond to same (.6). 0.10 14.50 12/28/2010 G RT Receipt and review of deposition notice for Dr. DeJongh. $145.00/hr 12/30/2010 GRT Receipt and review of correspondence from Dr. Hall regarding court date 0.20 29.00 and respond to same. $145.00/hr ,,,.Z_i_-ii___1-i- 16.60 $2,407.00 For professional services rendered Additional Charges : 8.35 12/7/2010 Filing Fee - Response to Motion to Seal Total additional charges $8-35 Total amount of this bill $2.415-35 Please make checks payable to The Travis Law Firm, P.C. THE TRAVIS LAW FIRM, P.C. 2401 Fountain View Drive, Suite 400 Houston, Texas 77057 (713) 626-3800 March 31,2011 ln Reference To: Hall Invoice #3217 Professional Services Hrs/Rate Amount --_---—-—- 1/7/2011 GRT Receipt and review correspondence from plaintiffs counsel regarding 0.40 58.00 x-rays (.1); draft correspondence to Dr. Hall regarding x-rays (.2); Receipt $145.00/hr and review of correspondence from Dr. Hall regarding x-ray (.1). 1/10/2011 GRT Receipt and review of correspondence from plaintiffs counsel regarding 0.40 58.00 x-ray (.1); telephone conference with plaintiffs counsel regarding x-ray $145.00/hr (.3). 1/11/2011 GRT Telephone conference with plaintiffs counsel regarding discovery. 0.90 43.50 $145.00/hr 1/12/2011 GRT Telephone conference w Telephone 0.80 116.00 conference with plaintiffs counse regar ing images of . ollard (.2); $145.00/hr draft email correspondence to T. Hail regarding x-rays and images (.2); draft and fon/vard email correspondence to plaintiffs counsel regarding same. 1/13/2011 JW Resea and review regardin 2.70 391.50 $145.00/hr 1/14/2011 GRT Continue work on discovery and x-ray issue (.1); Receipt and review of 0.20 29.00 correspondence regarding x-ray and duplication and respond to same (.1). $145.00/hr 1/18/2011 GRT Receipt and review of plaintiffs amended notice of hearing on plaintiffs 0.80 116.00 motion to seal records (.1); telephone conference with plaintiffs counsel $145.00/hr regarding same (.2); Receipt and review of various emails regarding discovery and respond to same (.5). 1/25/2011 GRT Receipt and review of correspondence from— 0.10 14.50 $145.00/hr 1/31/2011 JW Review of file in preparation for hearing on Motion to Seal. 2.20 319.00 $145.00/hr GRT Receipt and review of correspondence regarding stats update (.1). 0.10 14.50 $145.00/hr Page 2 t~ Hrs/Rate Amount 2/1 /201 1 JW Court Appearance for Hearing on Plaintiffs Motion to Seal. 2.40 348.00 $145.00/hr 2/2/201 1 GRT Receipt and review of correspondence from Plaintiffs counsel regarding 0.20 29.00 Dr. De Jongh's deposition. $145.00/hr 2/3/201 1 KDM Comprehensive review and analysis of medical records from Deana 2.50 187.50 Pollard from Doctor David De Jongh, Doctor Mark Hablinski, Doctor $75.00/hr Dassy Salazarl Doctor Frances Jones, an_ciDoctQlLL/llfiiel Mizell- GRT Receipt and review of correspondence from Plaintiffs counsel regarding 0.20 29.00 Dr. De Jongh and his deposition. $145.00/hr 2/4/201 1 KDM Preparation of Deposition by Written Questions and Subpoena Duces 3.60 270.00 Tecum to the Custodian of Records for Doctors Saud Alawadi, Danny $75.00/hr Miller, Larry Rose, and Susan Vogel (3.6). GRT Draft various email correspondences to C DiFerrante and to K. Black 0.90 130.50 regarding discovery and deposition; Receipt and review of various $145.00/hr correspondence responding to same (.3). 2/8/2011 GRT Receipt and review of correspondence from Plaintiffs counsel regarding 0.20 29.00 discovery and deposition (.2). $145.00/hr 2/14/2011 GRT Review of file and prepare and finalize—1.7) 1.70 246.50 $145.00/hr 2/16/2011 KDM Preparation of correspondence to Doctor James May requesting records 1.10 82.50 previously ordered (.3). Preparation of Deposition by Written Questions $75.00/hr and Subpoena Duces Tecum to the Custodian of Records for Doctor Adriana Corredor (.8). - GRT Prepare for meeting with Dr. Hall (1 .5); meeting with Dr. Hall in 9.90 551.00 preparation for trial (2.3). $145.00/hr 2/17/2011 KDM Preparation of Deposition by Written Questions and Subpoena Duces 0.80 60.00 Tecum to the Custodian of Records for Doctor Larry Steinberger (.8). $75.00/hr GRT Review of file and draft and finali 3.70 536.50 $145.00/hr 2/18/2011 GRT Receipt and review of correspondence regarding mediation (.2); 0.30 43.50 Telephone conference with Plaintiffs counsel regarding mediation (.1). $145.00/hr 2/21/2011 GRT Prepare for deposition of Dr. De Jongh (.5); draft outline (1 .5); review of 4.80 696.00 dental records (2.8). $145.00/hr 2/22/2011 GRT Review additional documents from Dr. De Jongh's office and review prior 10.10 1 ,464.50 to deposition (4.3); prepare for and attend deposition of Dr. De Jongh $145.00/hr (5.8) — Page e Hrs/Rate Amount 2/23/201 1 JW Review and research regardin 1.50 217.50 $145.00/hr Review Er. Henwo5E I 2/28/201 1 G RT Receipt and review of various correspondence regarding subpoenas 0.20 29.00 $145.00/hr 3/1 /201 1 GRT Receipt and review of correspondence from subpoenas (.2) 0.20 29.00 $145.00/hr 3/2/201 1 JW Work on subpoena issues for Dr. Rose and Dr. Steinburger (1.1). 6.00 870.00 Discussion with G. Travis regarding preparation for 30-day deadline $145.00/hr issues (.2). Review file and supplement discovery answers and document production (4.7). 3/3/201 1 JW Continue supplementation of documents for upcoming discovery deadline. 9.70 1 ,406.50 $145.00/hr KDM Comprehensive review and analysis of discovery files and documentation 3.60 270.00 in preparation for discovery supplementation (.6). Assist in $75.00/hr supplementation of discovery (3.0). GRT Receipt, review and analyze records from Dr. Adriana Corredor (1 .2); 1.40 203.00 draft correspondence to J. Woods regarding retrieval of Dr. Hablinski's $145.00/hr records and review of reply regarding status (.2) 3/4/201 1 JW Revise Defendant's Responses to Request for Disclosure and Expert 5.90 812.00 Designation and supplement discovery. $145.00/hr KDM Preparation of Defendants‘ Fourth Supplemental Responses to Plaintiffs 0.90 60.00 Request for Disclosures and Certificate of Written Discovery regarding $75.00/hr same. 3/8/2011 GRT Receipt, review and analyze Plaintiffs lengthy motion to quash deposition 2.90 420.50 on written questions of Dr. Susan Vogel, Dr. Steinburger, Dr. Rose, Dr. $145.00/hr Miller, Dr. Corredor, and Dr. Alawdhi and motion for protection; begin formulating response to same. (1.4); receipt and brief review of transcript for Dr. De Jongh (1.5). 3/9/2011 JW Review Plaintiffs Motion to Quash Deposition on Written Questions in 6.40 928.00 preparation for upcoming hearing (.7). Review Request for Disclosure $145.00/hr and Expert Designations of both plaintiff and defendant (2.4). Draft Response to Plaintiffs Motion to Quash and review deposition of plaintiff for use in response (3.3). 3/10/2011 JW Review depositions of Plaintiff, Dr. Hall, and Dr, De Jongh for use in 9.20 1,334.00 response to Plaintiffs Motion to Quash Deposition on Written Questions. $145.00/hr 3/11/2011 JW Finish drafting and revising Defendant's Response to Plaintiffs Motion to 2.80 406.00 Quash Deposition on Written Questions. $145.00/hr KDM Preparation of Notice of Hearing on Defendants‘ Motion to Compel 3.60 270.00 Answers to Interrogatories, Responses to Requests for Admission, $75.00/hr Responses to Request for Production, and Responses to Request for — Page 4 Hrs/Rate Amount Disclosures (.2). Prepare exhibits to attach to Defendants’ Response to Plaintiffs Motion to Quash Depositions on Written Questions and Motion for Protection (1.3). Review and revise Defendant's Response to Plaintiffs Motion to Quash Depositions by Written Questions and Motion for Protection (1.6). Review and revise Defendant's Response to Plaintiffs Motion to Quash Depositions by Written Questions and Motion for Protection (.5). 3/11/2011 GRT Review and revise defendant's motion to compel, answers to 3.70 536.50 interrogatories, Request for Admissions, Request for Production and $145.00/hr Request for Disclosure (1 .7); Receipt and review defendant's response to plaintiffs motion to quash deposition and motion for protection (2.0) 3/14/2011 JW Review documents in preparation for hearing on Motion to Quash (.9). 1.50 217.50 Review trial notebook for updating and supplementation necessary in $145.00/hr preparation for upcoming trial (.6). GRT Receipt, review and analyze plaintiffs lengthy response to defendant's 1 .90 261.00 motion to compel and being formulating response to same $145.00/hr 3/15/2011 JW Court Appearance for Hearing on Motion to Quash Deposition on Written 4.90 710.50 Questions (2.7). Review and work on trial notebook for upcoming trial $145.00/hr (2-2)- ' ill‘ 0.80 116.00 GRT Receipt and review of various correspondence from plaintiffs counsel regard‘ing d'iscovery, mot‘ion toquas h an dd eposiiono 't' n writte n uest‘io ns $145.00/hr (.5); Receipt and review of various correspondence fro 3.40 255.00 3/16/2011 KDM Visit to county clerk's office in courthouse to search for and retrieve court copies of orders to complete file and trial notebook preparation. $75.00/hr 2.80 406.00 3/17/2011 GRT Meeting with Dr. Hal Receipt and review of corresp nce regarding items to e acco p is ed prior $145.00/hr to trial (.2); Recei tand review of various correspondence from Dr. Hall regarding 1.60 232.00 3/18/2011 GRT Receipt and review of various correspondence regarding trial issues and respond to same; draft correspondence to Dr. Hall regarding status and $145.00/hr discove issues draft corres ondence to 0.70 101.50 3/21/2011 GRT Contact Dr. Skibell regarding trial (.2); $145.00/hr 0.20 29.00 3/22/2011 JW Conference with G. Travis regarding trial subpoenas and jury charge. $145.00/hr 0.30 43.50 GRT Receive of various emails from Dr. Hall $145.00/hr JW Finalize subpoenas (1.3). Research Motion to Strike (3.5). 4.80 696.00 3/23/2011 $145.00/hr -4 — Pe9e 5 Hrs/Rate A Amount 3/23/2011 GRT Begin preparing for trial; Receipt, review and analyze Plaintiff motion to 6.30 913.50 strike Defendant's expert David Skibell and be in formulatin res onse to $145.00/hr same (2.4); Telephone conference 3/24/2011 JW R eview ' emai'Ifr S . Hu hes re ardin otion to Strike and subpoenas, 2.50 362.50 and call Review Henwood $145.00/hr deposition 3/25/2011 JW Review deposition of Dr. Henwood (.6). Trial strategy regarding motions 2.90 420.50 in limine, jury charge, and direct & cross examination of Plaintiffs attorney $145.00/hr fee experts (1 .7). Review case law regarding motion to strike (.6). GRT Continued preparation for trial (4.3); Telephone conference with Dr. Hall 1.40 1 ,073.00 regarding records (.2); Receipt and review additional records of Dr. Hall $145.00/hr regarding testimony and factual matter (1 .5); review of Dr. Skibell's report and send to Dr. Hall (.5); contact Dr. May regarding his ability to assist (.3); contact Dr. Robbie Henwood (.1); draft various correspondence to Dr. Hall regarding various trial matters (.5). 3/26/2011 GRT Continued preparation for trial (.5); review of Dr. Hall's deposition and 6.70 971.50 Deanna Pollard‘s deposition in preparation for trial (5.8); review of various $145.00/hr correspondence from Dr. Hall regarding trial matters (.3); telephone conference with Dr. Hall to review testimony (.1). 3/27/2011 JW Review case law regarding motion to strike (5.5) begin preparation ofjury 6.30 913.50 charge (.8). $145.00/hr 3/28/2011 JW Drafting ofjury charge and work on motions in limine (.6) and continue 5.40 783.00 working on addressing Motion to Strike (4.8). $145.00/hr GRT Continued preparation for trial (.8); Receipt and review correspondence 8.70 1,261.50 from. Dr. May regarding .. testimony ' and respond e to same . (.2); continue . $145.00/hr review of deposition of D Pollard an ion of trial 6 7 recei us emails from Receipt and review o various emai correspon ence rom Dr. Hall re arding matter and res ond to same .4); draft correspondence t 3/29/2011 JW Finalize draft of jury charge including Plaintiffs and Defendant's causes of 9.10 1,319.50 action, affirmative defenses, and damages (9.1). $145.00/hr GRT Continued trial preparation (3.1); work on witness list (.5); review 9.00 1,305.00 documents and work on exhibit list; work on motion in liminie (.8); work $145.00/hr on trial subpoenas (1 .2); begin drafting direct examination outlines (1.0); Receipt and review multiple emails from Plaintiffs Counsel regarding discovery and trial and draft response to same (.9). 3/30/2011 JW Review and revise Motions in Limine (3.9). Review and revise Motion to 12.20 1 ,769.00 Bifurcate and review Texas case law regarding same (2.8). Review $145.00/hr Motion to Quash Subpoena of Kristen Black (.5). Review voir dire material (.4). Draft Response to Motion to Quash Skibell and draft Defendant's Motion to Quash Di Ferrante and Sacks (4.6). t Page 3 Hrs/Rate Amount I 3/30/2011 GRT Draft and finalize correspondence to Plaintiffs counsel with printouts of 9.30 1,348.50 Dr. Hall's diagnosis and treatme fo intiff .4 ' review and revise $145.00/hr R6C8Ipl,7‘8iew and analysis of Plaintiffs motion to quash Defendant's subpoena for Kristen Black (.2); Continued trial re aration and review of exhibits (3.8); draft various correspondence . g various issues . ; Telephone conference with Dr. Hall regarding various issues (.3); Telephone ‘feeee W““— 3/31/2011 GRT Continued trial preparation (3.0); finalize and file defendant's exhibit list, 9.60 1,392.00 defendant's witness list, defendant's jury charge and defendant's motion $145.00/hr in limine (2.3); review and revise defendant's motion to strike Plaintiffs expert Chris Diferrante and David Sacks (5); Telephone conference with R. Henwood regarding testimony (.4); work on deposition video cuts (1 .5); receipt of various correspondence from Plaintiffs counsel regarding various trial issues and dr res onse to same .6); Receipt and review of corres on ence from ; Telep one con erence wit r. a regarding testifying an medical records (.9); draft correspondence to Dr. Hall regarding same and receipt and review reply (.5). For professional services rendered 220.10 $30,553-50 Additional Charges : 2/1/2011 Parking - Hearing 5-00 3/11/2011 Filing Fee - Motion to Compel 3-35 Filing Fee - Response to Motion to Quash 3-35 3/15/2011 Parking - Hearing 5-00 3/16/2011 Copying cost - Court Copies of Orders (14 pages) 14.00 Parking - Retrieve Court Copies from Courthouse 4.00 3/24/201 1 Lunch - Client meeting 30-00 Parking - Pretrial meeting at Courthouse 4.00 3/28/201 1 Postage 2/26/2011-3/25/2011 15-02 Copying cost 2/26/11-3/25/11 233-30 3/30/201 1 Filing Fee - Motion for Separate Trial 8.35 Filing Fee - Notice of Hearing 3-35 3/31/2011 Filing Fee - Letter to Court 3-35 Page 7 Amount 3/31/2011 Filing Fee - Exhibit List 8.35 Filing Fee - Jury Charge 8.35 Filing Fee - Witness List 8.35 Total additional charges $382.62 Total amount of this bill $30,939.12 Please make checks payable to The Travis Law Firm, P.C. THE TRAVIS LAW FIRM, P.C. 2401 Fountain View Drive, Suite 400 Houston, Texas 77057 (713) 626-3800 June 30, 2011 In Reference To: Hall invoice #5075 Professional Services Hrs/Rate Amount 4/1/2011 GRT Continue trial preparation; Receipt and review of subpoena presumably 10.30 1 ,493.50 for Dr. Hall (.1); review of Plaintiffs Trial Exhibits, Witness List, Motion in $145.00/hr Liminine, Jury Charge and begin drafting analysis to same (3.9); Receipt and review of various emails from Plaintiffs Counsel regarding pretrial matters and draft responses to same (.8); Telephone conference with Dr. D e J ong h regardi'ng su b poena (. 1 ); Tel ep h one con ference wi th R . Henwood regarding trial (.2); Telephone conference with Dr. May regarding matter 1 with Dr Skibel regarding matter(.3) Receipt and review of correspon ence rom De Jongh office (.1); continue revision to Defendant's Exhibit List, Witness List, and Motion in Liminie (4.3). JW Review and revise Trial Notebook (.6); receipt and review of Plaintiffs 4.00 580.00 Motion to Strike (.3); respond to Motion to Quash Subpoena of K. Black $145.00/hr (1.1); telephone conference with G. Travis regarding K. Black's subpoena and strategy in context of subpoena (.5); receipt and review of voluminous emails between G. Travis and C. Di Ferrante regarding pretrial motions, jury charge and review attachments of same (1 .5); Receipt and review of Plaintiffs Subpoena of Dr. Thomas Hall for Monday hearing, Plaintiffs Response to Defendant's Motion to Strike Sacks, and Motion to Strike Di Ferrante (.7); formulate outline for response to same (.8); and review and analyze case law regarding Motion to Strike Di Ferrante and Sacks (2.4). 4/2/2011 LL Conduct electronic research ardin ' i 5.10 739.50 concer in attorney's fe $145.00/hr d the response to e aini sob ection oevi ence on the o racity. Outline argument* GRT Continue trial preparation (4.0); Telephone conference with Dr. Hall (.3); 11.30 1 ,638.50 Review of deposition transcript (3.4); prepare cross examination and $145.00/hr direct examination (3.2) ; draft email correspondence to Dr. De Jongh regarding subpoena (.4). JW Continue review of attorney billing of Plaintiff and compare billing between 10.90 1 ,580.50 all of Plaintiffs attorneys to spot issues of excessive and double billing $145.00/hr (7.9); and meeting with client regarding questioning by Plaintiffs counsel Q Peoe 2 Hrs/Rate Amount L A 4/3/2011 LL Conduct research re ardin 7.90 1,145.50 i $145.00/hr GRT Continue trial preparation (2.0); Telephone conference with Dr. Hall (.3); 12.40 1,798.00 continue review of deposition (1.4); continue preparation of $145-00/hf cross-examination (2.9); prepare Voire Dire and work on open (3 .4); Receipt and review correspondence from Dr. Hall regarding medical records (.4); Receipt and review correspondence from Plaintiffs Counsel regarding Motion in Liminine and augment to Plaintiffs motion (.2); work on proposed Jury Charge (1.8). JW Draft and revise Motion to Quash Subpoena of Dr. Hall to appear at 7.80 1,131.00 hearing on Motion to Quash the Subpoena of Dr. Skibell (4.1); receipt and $145.00/hr review of Plaintiffs Exhibit List, 50 page Jury Charge; Plaintiffs Witness List; and deposition cuts; compare Plaintiffs Jury Charge against gefendanfs Jury Charge and draft suggestions forjury Charge to Court .7 . 4/4/2011 LL Conduct research and outline ar uments regarding‘ 2.50 312.50 i w5-<><>/r~- GRT Continue trial preparation (.4); meeting with Dr. Skibel to review testimony 12.50 1,812.50 (2.8); draft First Amended Witness List (1.3); review and revise $145.00/hr Defendant's Motion for Protection and Objection to Plaintiffs subpoenas of Dr. Hall (1.4); Receipt and review of various email correspondence from Plaintiffs Counsel regarding pretrial matters and objection to same (.7); Receipt and review of Plaintiffs Objections to Exhibits, Witness List and Motion in Liminine (.7); research issues and prepare response to same (1.8); draft email to R. Henwood regarding testimony (.4); Receipt and review correspondence from R. Henwood regarding testimony (.1); finalize Exhibits, Witness List, Motion in Liminie and Jury Charge (2.9). JW Travel to and from Courthouse and attend scheduled hearing on Motion 8.00 1,160.00 to Strike Dr. Skibell (1.8). Review and discussion of cross examination of $145.00/hr expert witnesses in light of Plaintiffs and Defendant's pleadings (1.5). Draft memorandum to file and G. Travis regarding case law on Plaintiffs Motion in Limine (1 .7). Draft and revise memorandum regarding Defendant's agreements and objections to Plaintiffs Motion in Limine (80 items). Revise and cross-examination of Plaintiffs attorney fee expert and review expert's credentials and previous incidents of tetifying as an expert (1 .7). 4/5/2011 LL 3.50 507.50 $145.00/hr GRT Pre aref ' .1 - meeting with Dr. Hall to discuss; 19.90 1,912.00 review of emails re ardin case an res ond to $145.00/hr sa . ; eep o conference with _ Page e Hrs/Rate Amount Telephone conference with Dr. May regarding schedule (.2); Telephone conference with Dr. Skibel regarding schedule (.2). 4/5/2011 JW Attend and assist at trial. 8.20 1,199.00 $145.00/hr 4/6/2011 GRT Prepare for trial (1.8); trial (9.5); meeting with Dr. Hall to review medical 14.30 2,079.50 records and go over discovery (1.9); Receipt and review of email (.4); $145.00/hr Telephone conference with Dr. May regarding schedule (.1); Telephone conference with Dr. Skibel regarding schedule (.2); draft correspondence 9* JW Attend and assist at trial. 8.40 1,218.00 $145.00/hr 4/7/2011 oer Pre are for trial 2.9 ; attend trial 9.1 7.90 1,145.50 e ep one con erence with Dr. $145.00/hr ay regar ing s a us . ; e ep one conference with Dr. Skibel status ( 2)‘ and respond to same (.1 JW Attend and assist at trial _ 3.10 449.50 $145.00/hr 4/8/201 1 GRT Draft correspondence ; and work with 2.80 406.00 Dr Hall ( 2) Receipt and review corres on ence rom Court regarding $145.00/hr report (.2); Telephone conference with Dr. May and Dr. Skibel regarding status (.2). 4/18/2011 GRT Receipt and review of various correspondence from Plaintiffs Counsel 0.30 43.50 regarding trial continuation and draft response to same. $145.00/hr 4/20/2011 GRT Receipt and review of correspondence from Plaintiffs Counsel regarding 0.10 14.50 matter and draft response to same. $145.00/hr 4/21/2011 GRT Receipt and review of correspondence from Plaintiffs Counsel regarding 0.10 14.50 matter and draft response to same. $145.00/hr 5/17/2011 JW Draft and forward lettert r 0.30 43.50 $145.00/hr 5/31/2011 GRT Receipt and review of correspondence from B. Beers designating self as 0.10 14.50 lead counsel; Receipt and review of Notice. $145.00/hr 6/1/2011 GRT Receipt and review of correspondence from K. Myatt regarding 0.40 58.00 designation of Brad Beers as counsel for Deanna Pollard and respond to $145.00/hr same; draft correspondence to Dr. Hall regarding designation. 6/24/2011 JW Draft co 0.30 60.00 $200.00/hr — Peee 4 Hours Amount _ For professional services rendered 156.10 $22,601.00 Additional Charges : 4/4/2011 Parking - Hearing 3.00 Filing Fee - Jury Charge 8.35 Filing Fee - Witness List 8.35 Filing Fee - Notice of Hearing 8.35 Filing Fee - Motion for Protection 8.35 4/5/2011 Parking - Delivery to Trial 1.40 Lunch - Trial 3.98 4/6/2011 Lunch -Trial 7.60 4/30/2011 Copying cost 1,227.20 5/19/2011 Postage 0.44 6/30/2011 Postage 0.44 Total additional charges $1 .277-43 Total amount of this bill $23.373-43 Please make checks payable to The Travis Law Firm, P.C. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4045604. Public record. Not legal advice.