Charles P. Akin, D.D.S. v. State Board of Dental Examiners

ACCEPTED 03-14-00390-CV 3711863 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/9/2015 11:54:29 AM JEFFREY D. KYLE CLERK NO. 03-14-00390-CV ____________________________________________________________ FILED IN IN THE COURT OF APPEALS 3rd COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS AT AUSTIN, TEXAS 1/9/2015 11:54:29 AM JEFFREY D. KYLE ____________________________________________________________ Clerk

CHARLES P. AKIN, D.D.S., Appellant

v.

TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellee ____________________________________________________________

On Appeal from the 200th Judicial District Court Of Travis County, Texas The Honorable Orlinda Naranjo Presiding ____________________________________________________________

APPELLANT CHARLES P. AKIN, D.D.S.’S REPLY BRIEF ____________________________________________________________

Mark J. Hanna State Bar No. 08919500 Robert M. Anderton State Bar No. 00795223 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188

Jon M. Smith State Bar No. 18630750 3305 Northland Drive, Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 ORAL ARGUMENT REQUESTED ____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 1

TABLE OF CONTENTS

PAGE

INDEX OF AUTHORITIES ………………………………………………………3 IDENTITY OF PARTIES AND COUNSEL……………………………………..5 REFERENCE TO THE PARTIES AND RECORD ……………………………6 SUMMARY OF THE ARGUMENT……………………………………………...7 ARGUMENT ………………………………………………………………………7 CONCLUSION ………………………………………………………………….12 PRAYER …………………………………………………………………………13 CERTIFICATE OF COMPLIANCE ……………………………………………14 CERTIFICATE OF SERVICE ………………………………………………….14

____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 2

INDEX OF AUTHORITIES

CASES PAGE

Chalifoux v. Texas State Board of Medical Examiners, No. 03-05-00320-CV, 2006 WL 3196461 (Tex. App.—Austin 2006, pet. denied)(mem.Op.) ………………………...7,11

Dental Examiners v. Neeley, 574 S.W.2d 244, 245 (Tex. App.—Austin 1978, no writ)……………………………………………..12

Kittman v. State Board of Pharmacy of Texas, 607 S.W.2d 26, 29 (Tex. App.—Tyler 1980, no writ)………………………..12

Korndorffer v. Texas State Board of Medical Examiners, 460 S.W.2d 879 (Tex. 1970)…………………………………………………...12

Texas State Bd. of Med. Exam’rs v. McClellan, 307 S.W.2d 317, 320 (Tex. Civ. App.—Houston 1957, writ ref’d n.r.e.)……………………………………………………………….11,12

____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 3

NO. 03-14-00390-CV ____________________________________________________________

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN, TEXAS ____________________________________________________________

CHARLES P. AKIN, D.D.S., Appellant

v.

TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellee ____________________________________________________________

On Appeal from the 200th Judicial District Court Of Travis County, Texas The Honorable Orlinda Naranjo Presiding ____________________________________________________________

APPELLANT CHARLES P. AKIN, D.D.S.’S REPLY BRIEF ____________________________________________________________

Mark J. Hanna State Bar No. 08919500 Robert M. Anderton State Bar No. 00795223 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188

Jon M. Smith State Bar No. 18630750 3305 Northland Drive, Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 ORAL ARGUMENT REQUESTED ____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 4

IDENTITY OF PARTIES AND COUNSEL

Appellant: Charles P. Akin, D.D.S.

Appellant’s Counsel: Robert M. Anderton State Bar No. 00795223 Mark J. Hanna State Bar No. 08919500 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188

Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685

Appellee: Texas State Board of Dental Examiners

Appellee’s Counsel: Mr. Harold J. Liller State Bar No. 24029689 Assistant Attorney General Administrative Law Division Office of the Texas Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4300 Facsimile: (512) 320-0167

____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 5

REFERENCE TO THE PARTIES

Appellant will refer to Appellant, Charles P. Akin, D.D.S., as “Dr. Akin” and Appellee, the Texas State Board of Dental Examiners, as “the Board.”

REFERENCE TO THE RECORD

Reference Meaning A.R. Administrative Record Tab ___ C.R. Clerk’s Record at page ___

____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 6

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF

APPEALS:

Appellant, Charles P. Akin, D.D.S., files this reply brief and would show as follows:

SUMMARY OF THE ARGUMENT

The purpose of this brief is to address two specific issues raised in the Board’s brief: (1) The Board’s misstatement of the facts about the relationship between Dr. Akin wearing a nametag and accepting and depositing checks; and (2) The Board’s misplaced reliance on the Chalifoux1 case. As the remaining issues have been thoroughly briefed in Dr. Akin’s original brief, this reply brief will be limited to those two issues.

ARGUMENT

The Board incorrectly claims in its brief that Dr. Akin accepted and deposited checks from patients while wearing a nametag stating that he was a dentist. The Board also improperly relies on the Chalifoux case to support its position that it was correct to withhold Dr. Akin’s dental license. As the following paragraphs illustrate, both of these positions are flawed.

1Chalifoux v. Texas State Board of Medical Examiners, No. 03-05-00320-CV, 2006 WL 3196461 (Tex. App.—Austin 2006, pet. denied)(mem. Op.). ____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 7

There is No Evidence that Dr. Akin Accepted Checks While Wearing a Nametag

On page 3 of its brief, the Board states as follows:

Upon his release from prison, Appellant began working at various dental offices, and, at some point, he began wearing a nametag evidencing that he was “DDS, Retired.” Appellant’s representations clearly had a direct or indirect effect on his public perception. While working at a dental office and wearing this nametag, Appellant accepted and deposited checks from patients for dental services into his personal account.

This statement is contrary to the testimony given at the hearing in this case. Dr. Akin testified that he helped manage the office at the Denture Shop in Dripping Springs. (AR 12, 18:2-7; 56:22-58:3) He further testified that while working there he was visited by a dental investigator and he was wearing the nametag that stated, “Charles P. Akin, Office Manager, D.D.S. Retired.” (AR 12, 18:8-16; 41:9-25) The only evidence about Dr. Akin wearing a nametag is that he did so in the Dripping Springs Denture Shop office. There is no evidence that he wore the nametag at any other location.

There is evidence of another Denture Shop location on Burnet Road. (AR 12, 17:8-10) The corporate documents offered as exhibits by the Board show that Charles P. Akin, D.D.S., P.C. obtained an assumed name certificate for the name “Denture Shop.” (AR 11, RX 2) It also indicates

that on May 16, 1997 the registered office of the professional corporation ____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 8

was changed from 1600 West 35th Street to 5020 Burnet Road. (AR 11, RX 2) The complaint upon which the Board relies to support its claim that Dr. Akin improperly accepted a check references dental work performed at 5020 Burnet Road. (AR 11, RX 5) Dr. Akin’s testimony regarding the acceptance of the check references the Burnet Road office. (AR 12, 30:17-32:22; AR 11, RX4) All of the evidence regarding the acceptance of checks relates to the Burnet Road office. There is no evidence regarding any checks submitted at the Dripping Springs location.

Wayne Langham distinguished between the Burnet Road and Dripping Springs locations in his testimony. (AR 12, 73:12-74:5) But when Dr. Akin attempted to clarify between the Burnet Road and Dripping Springs offices, counsel for the Board attempted to cloud the issue.

Q: Isn’t that what you just said, you told people you were D.D.S. and retired and you had a badge that said you were D.D.S. retired?

A: Are we talking about Dr. Herron on Burnet Road, or are we talking about Dripping Springs?

Q: I’m talking about you Dr. Akin. It’s all about you today.

A: Okay.

(AR 12, 62:8-15)

Q: But the patient wrote a check to you, for Dr. Akin, did she not?

A: You’re kind of jumping from one office to the other. ____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 9

Q: I’m trying to get you to nail down –

A: What patient?

Q: Ms. Fisher.

A: Ms. Fisher. Well, I think –

Q: Wrote a check to you, for Dr. Akin, did she not?

A: We’ve already been through that. And, yes, ma’am, there was a check.

Q: And you were – you wear a badge calling yourself a D.D.S.—

A: I did not wear a badge at that time.

Q: But you did later?

A: A couple years later, I guess, or a year and a half. I don’t know what the date is when I got the badge.

(AR 12, 64:10-65:3)

Interestingly, the Administrative Law Judge was able to distinguish between the wearing of the nametag in the Dripping Springs office and the issue with the checks at the Burnet Road office. (AR 17, pp. 4-7) There is nothing in the ALJ’s decision to indicate that one issue is related to the other.

The Board’s statement that “While working at a dental office and wearing this nametag, Appellant accepted and deposited checks..” is an

____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 10

incorrect statement of fact and is an attempt to mislead the court. Because this statement is false, the Board’s argument that Dr. Akin’s wearing the nametag convinced patients to write checks to him fails. The Board’s Reliance on the Chalifoux case is Misplaced

On page 14 of its brief the Board cites the unpublished Chalifoux case for the proposition that the Board is not required to comply with criminal standards. But that quote from the Chalifoux case misses the point.

The Texas Medical Board filed a formal complaint against Dr. Chalifoux claiming that his treatment of 13 patients fell below the accepted standard of care and constituted unprofessional or dishonorable conduct. Chalifoux at 4. The ALJ found that Dr. Chalifoux’s treatment of three of the patients was substandard and the Board revoked his license. Id. at 10.

On appeal, Dr. Chalifoux cited the McClellan2 case for the proposition that a formal complaint by the Medical Board must have the certainty of a criminal indictment. Id. at 17. The court disagreed stating that the Board’s complaint had been sufficiently detailed to put Dr. Chalifoux on notice of the substance of the claim. Id. at 17-18. The Chalifoux case is not applicable

to this case. 2 Texas State Bd. of Med. Exam’rs v. McClellan, 307 S.W.2d 317, 320 (Tex. Civ. App.—Houston 1957, writ ref’d n.r.e.) ____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 11

Dr. Akin does not complain in this case that the Board’s complaint against him was not sufficiently detailed to put him on notice of its basis. Instead, Dr. Akin has cited the McClellan, Korndorffer 3 , Kittman 4 and Neeley5 cases for the proposition that the Board must prove its allegations in order to support the penalty that it proposes. Dr. Akin has fully analyzed each of these published opinions in his first brief and they still support the position that while the Board has presented piecemeal evidence of the violations that it claims, it has not presented evidence in support of each element of the violations that it claims. There is evidence that Dr. Akin wore a nametag, but no information that it misled anyone. There is evidence that Dr. Akin accepted and deposited two checks, but not evidence that he did so in exchange for any dental services. Because of this lack of evidence, the Board’s complaints fail.

CONCLUSION

The Board has misstated the facts attempting to relate Dr. Akin’s wearing of the nametag with his receipt of checks. It has also misinterpreted the law relating to its duty to prove its complaints against Dr.

3 Korndorffer v. Texas State Board of Medical Examiners, 460 S.W.2d 879 (Tex. 1970) 4 Kittman v. State Board of Pharmacy of Texas, 607 S.W.2d 26, 29 (Tex. App.—Tyler 1980, no writ) 5 Dental Examiners v. Neeley, 574 S.W.2d 244, 245 (Tex. App.—Austin 1978, no writ)

____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 12

Akin. As a result, the Trial Court erred when it affirmed the Board’s decision not to license Dr. Akin.

PRAYER

FOR THE FOREGOING REASONS, Appellant prays that this Court reverse the trial court’s final judgment, reverse the decision of the Board, and order that Appellant’s application for licensure be granted.

Respectfully submitted,

LAW OFFICES OF HANNA & ANDERTON

By:_____________________________ Mark J. Hanna State Bar No. 08919500 Robert M. Anderton State Bar No. 00795223 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188

Jon M. Smith State Bar No. 18630750 3305 Northland Drive, Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685

ATTORNEYS FOR APPELLANT ____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 13

CERTIFICATE OF COMPLIANCE

I, Mark J. Hanna, do hereby certify that the Appellant’s Brief contains 2,004 words, according to the word count of the computer program used to prepare it, in compliance with Texas Rule of Appellate Procedure 9.4(i)(3).

________________________________ MARK J. HANNA

CERTIFICATE OF SERVICE

I, Mark J. Hanna, do hereby certify that a true and correct copy of the foregoing document was delivered to all attorneys of record as listed below via facsimile on January 9, 2015.

Mr. Harold J. Liller Assistant Attorney General Administrative Law Division Post Office Box 12548 Capitol Station Austin, Texas 78711-2548 Via Facsimile (512) 320-0167

________________________________ MARK J. HANNA

____________________________________________________________________________________ Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 14