Bamba v. Joseph

• Court: Superior Court of Guam
• Decided: May 9, 2014
• Docket: SD0401-13
• Status: Unknown

Opinion

FILED SUPERIOR COURT OF GUAM 1 2 zmq MAY - 9 PH 2: 30 3 CLERKO~ 4 IN THE SUPERIOR COURT OF G~-~ 5 SMALL CLAIMS DIVISION 6 JOSEPH L. BAMBA, ) Small Claims Case No. SD0401-13 7 ) 8 Plaintiff, ) DECISION AND ORDER ) 9 vs. ) 10 ) JOEL JOSEPH, MICRONESIA EXOTIC ) 11 ANIMAL SPECIALTY SERVICES, INC. ) 12 dba WISE OWL ANIMAL HOSPITAL, ) 13 ) Defendant. ) 14 15 16 This matter came before the Court upon Plaintiff Joseph L. Bamba' s Motion for Relief

17 from Order and Renewed Objection to Application of the Medical Malpractice Act to a 18 Consumer Protection Act Cause of Action which was filed on December 30, 2013. Plaintiff i& 19 20 represented by Assistant Attorney General Benjamin M. Abrams. ProSe Defendant Joel Joseph 21 et al has not filed an Opposition to the motion. Notwithstanding Plaintiff's request for oral 22 23 argument, the Court exercises its discretion and denies the request. After consideration of the

24 arguments presented by the Plaintiff, the Court hereby issues its decision and order. 25 BACKGROUND 26 27 Procedural Background 28 In order to provide context to the motion before the Court, a brief description of the 29 procedural history is appropriate. The Court had previously heard argument by the parties on the 30 31 applicability of the Medical Malpractice Mandatory Arbitration Act, as found in Title 10 GCA 32 §§10101 et seq., on November 7th and 14th, 2013. This issue was raised upon Defendant's oral 1 motion to stay proceedings pursuant to this Act. The Court made an oral pronouncement that the

2 mandatory arbitration provision of the Act applied and, at the request of Plaintiff, the Court 3 subsequently issued a written Decision and Order. See Decision and Order, Bamba v. Wise Owl, 4 5 SD0401-13 (Dec. 26, 2013). 6 Unbeknownst to the Court, Plaintiff had filed a written opposition to the Defendant's 7 8 motion to stay on December 20, 2013. Because the opposition was filed in Hagatiia, it did not

9 make its way to the Magistrate at the Northern Court Satellite until after the Court's written 10 Decision and Order was issued. 1 11 12 Shortly after the Court's Decision and Order was issued the Plaintiff filed the instant 13 Motion for Relief from Order and Renewed Objection to Application of the Medical Malpractice 14 Act to a Consumer Protection Act Cause of Action. Plaintiff seeks relief on the basis of GRCP 15 16 Rule 60(b)(6). 17 Factual Background2 18 19 On May 26, 2013, Plaintiff, by and though the Consumer Counsel of the Attorney 20 General of Guam, filed a complaint in small claims against the Defendant. Plaintiff sought the 21 recovery of $200.00 paid as an advance on fees for veterinary services rendered by the 22 23 Defendant. Plaintiff alleged that Defendant performed a surgical procedure on the wrong leg of 24 his animal. Consequently, Plaintiff alleged that because of the negligence of Defendant he is 25 26 entitled to the refund of the fee. As grounds for the claim Plaintiff asserted a breach of warranty

27 and agreement with the consumer; and commission of false, misleading and deceptive practice 28 1 Although it mus t be noted that Plaintiff's submiss i on of the wri t ten 29 opposition to t h e Defendant's motion to stay proceedings was not timely fi l ed and coul d b e ignored by the Court; t h e Court will give Plain t i f f and his 30 coun sel the benefit of the doubt that t h e oppositi o n was submitted in good faith and out of concern that the Co u rt ' s eventual decision and order on t h e 31 matter of the stay was not issued as expeditious l y as the parties ostensibly believed it would be. 32 2 The Court's factual recitation contai ned in the Decision and Order of December 26, 20 1 3 i nc l uded other procedural matters which will not be repeated herein . 1 by Defendant which induced Plaintiff to pay in advance for consumer services. The Consumer 2 Counsel of the Office of the Attorney General of Guam is statutorily authorized to represent 3 consumers in in actions involving the Deceptive Trade Practices- Consumer Protection Act, as 4 5 contained in Title 5 GCA §§32101 et seq. At the Answering on June 25, 2013, the allegations of 6 the complaint were denied and trial was originally set for August 30, 2013. 7 8 On July 9, 2013, Defendant filed a counterclaim seeking the remaining fee for

9 professional services rendered. The Answering of the counterclaim was also scheduled for 10 August 30, 2013; however, on that date, the Defendant was not present. Consequently, on 11 12 October 10, 2013, a Default Entry by Clerk was filed. 13 The matter was eventually transferred to the Magistrate Judge and a status hearing was 14 scheduled for November 7, 2013, to determine the exact procedural posture of the case and to 15 16 determine whether trial should proceed. At the hearing, Defendant asserted that because the 17 underlying claim for restitution was based upon the negligent medical services; the provisions of 18 19 the Medical Malpractice Mandatory Arbitration Act (hereinafter 'MMMAA") apply and the

20 matter should be stayed. The Court agreed and ordered proceeding stayed and for the parties to 21 begin the arbitration procedures provided by the MMMAA. See Decision and Order, Dec. 26, 22 23 2013. 24 DISCUSSION 25 26 I. 27 Preliminarily, the Court notes that the Defendant failed to file an opposition to the 28 Plaintiff's motion. The Local Rules of the Superior Court provide that oppositions to motions 29 30 may be filed within 28 days of the filing of the motion. See CVR 7.1(d)(l). No opposition has 31 been filed but nothing prevents the Court from proceeding to address the motion. The Local 32 1 Rules provide that the Court need not consider oppositions to motions that do not comply with 2 the Rules. See CVR 7.1(t) and (k). 3 Additionally, although Plaintiff has requested for oral argument on the motion; the Court 4 5 finds that Plaintiffs motion adequately articulates its argument and that oral argument is not 6 necessary for its disposition. See CVR 7.1(e)(2)(D). 7 8 II.

9 Plaintiff seeks relief from the Court's December 26, 2013, Order pursuant to Guam Rules 10 of Civil Procedure Rule 60(b)(6) which states: 11 12 (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a 13 party or a party's legal representative from a final judgment, order, or proceeding 14 for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment. 15 16 GRCP 60(b)(6). The Court must consider that "Rule 60(b)(6) 'provides for extraordinary relief 17 and requires a showing of exceptional circumstances."' Parkland Development, Inc. vs. 18 19 Anderson, 2000 Guam 816 (citation omitted)(quotations in original). "Courts use rule 60(b)(6) 20 relief sparingly "as an equitable remedy to prevent manifest injustice" and grant relief "only 21 where extraordinary circumstances prevent a party from taking timely action to prevent or 22 23 correct an erroneous judgment." Merchant v. Nanyo Realty, 1998 Guam 2619 (citation omitted). 24 At this point, the Court must make the observation that there appears to be a 25 26 misunderstanding of the application of Rule 60(b). Guam's Rule 60(b) was adopted from Rule

27 60(b) of the Federal Rules of Civil Procedure. Brown v. Kodak, 2000 Guam 30 1 14. The 28 subsections of the rule are mutually exclusive. /d. (citation omitted). Thus, if the circumstances 29 30 alleged fall into any of the other subsections allowing for set aside then relief under subsection 31 (6) cannot be had. /d. If, as Plaintiff argues, the motion is appropriate on grounds of mistake, 32 inadvertence and in the interests of justice in aiding the decisional process of the Court then, at , - -- -- - - - - - - - - - - - - - - - - - - - - - - - - -- ---------------·--------

1 face value, relief is inappropriate under subsection (b)(6); and that relief is pursued under Rule 2 60(b)(1). See Brown supra. 3 Rule 60(b)(1) relief is also an extraordinary procedure which seeks to strike a delicate 4 5 balance between two countervailing impulses: the desire to preserve the finality of judgments 6 and the incessant command of the court' s conscience that justice be done in light of all the facts. 7 8 Jennings v. Rivers, 394 F.3d 850, 856 (lOth Cir. 2005)(citations omitted). Thus, the rule should

9 be liberally construed when substantial justice will be served. /d. Relief pursuant to Rule 10 60(b)(l) can be premised on mistake, surprise, inadvertence or excusable neglect by the court or 11 12 counsel. 11 Wright and Miller. Federal Practice and Procedure, § 2858 (2d ed.). 13 Plaintiffs motion fleshes out the argument that was made at the hearings on the matter by 14 providing authority to buttress its claim that the underlying cause of action in this case arises 15 16 from the Consumer Protection Act and that the MMMA has no applicability. With regard to the 17 case authority involving the Consumer Protection Act, these are matters which should have been 18 19 brought to the Court's attention sooner. On this basis alone the Court would be well within its 20 rights to disregard the motion and its accompanying memorandum of law. However, although 21 not extensively discussed at the hearing, the Court does acknowledge that Plaintiffs attorney 22 23 also asserted that the cause of action arose from application of the Consumer Protection Act. 24 Therefore, the Court, in the interests of substantial justice and to assure these small 25 26 claims litigants that their perspectives are important, will proceed to consider the authority to

27 determine whether the fact that the instant complaint was brought pursuant to the Consumer 28 Protection Act prevents the application of the MMMAA. 29 30 III. 31 First, as analyzed by the Court in its Decision and Order staying the proceedings and 32 ordering the parties to engage in the arbitration prescribed in the MMMAA, it was determined: 1 The MMMAA applies to a claim, whether in tort, contract, or otherwise, if it is a controversy between the patient, his relatives, his heirs-at-law or personal 2 representative or any third party or other party, and the health professional and is 3 based on malpractice, tort, contract, strict liability, or any other alleged violation of a legal duty incident to services rendered by the health professional. See 10 4 GCA §10102. 5 Decision and Order at p.4 (Dec. 26, 2013). Thus, it concluded that the plain language of the 6 7 statute indicated that no matter what the underlying action was, be it malpractice, tort, contract, 8 strict liability, or any other alleged violation of a legal duty incident to the services rendered by 9 10 the health professional, the parties had to first follow the directive of mandatory arbitration under 11 the MMMAA. Furthermore, if an action had already been filed in the Superior Court and it was 12 found that the issue involved in the suit was referable to arbitration; then a stay of proceedings is 13 14 required. /d. 15 Because the Plaintiff is challenging this conclusion, then it must logically follow that in 16 17 order for Plaintiff to have successfully resisted the mandate of the MMMAA he must have either

18 shown: (1) that the underlying lawsuit had nothing to do with the services rendered by the 19 Defendant; or (2) that the remedies afforded by the Consumer Protection Act are exclusive 20 21 regardless of whether it arises from the services rendered by the Defendant. 22 IV. 23 24 Whether there can be any doubt that the underlying lawsuit in this case did not involve

25 the medical services rendered by the Defendant cannot be seriously maintained. Plaintiff 26 essentially has argued that his legal rights as a consumer were violated because he was injured by 27 28 the improper delivery of veterinary medical services by Defendant to their client (not "patient"), 29 the Plaintiff. Plaintiff asserts that it is an unfair and deceptive business practice to refuse to return 30 31 32 1 his initial down-payment even though the Defendant did not perform as promised; and that in 2 fact, the Defendant is demanding payment for services he never requested. 3 3 4 v. 5 Plaintiff does maintain however, that the complaint filed in this case does not contain a 6 cause of action based on the Medical Malpractice Act; but rather it is a cause of action under the 7 8 Consumer Protection Act. Plaintiff states that this small claims lawsuit is authorized by 5 GCA

9 §32111(a) which states: 10 Any prohibited act or practice that is specifically enumerated in this chapter, 11 including but not limited to acts of omission, failure to honor any warranty or 12 agreement with the consumer, or committing any false, misleading or deceptive acts or practices by a merchant to induce a consumer to purchase goods or 13 services. 14 5 GCA §3211l(a). He alleged that the Defendant qualifies as a "merchant" as defined 15 16 under the Act: 17 Merchant means a person who deals in goods or services of the kind involved in 18 the transaction or otherwise by his occupation or statements holds himself out as 19 having knowledge or skill peculiar to the practices, services or goods involved in the transaction or to whom such knowledge or skill may be attributed by his 20 employment of an agent or broker or other intermediary who by his occupation 21 holds himself out as having such knowledge or skills In addition, a person who purports to be a merchant or holds himself out as a merchant is a merchant for 22 purposes of this section. 23 5 GCA §32103(j)(emphasis in original). And that the Plaintiff qualifies as a "consumer" as 24 25 defined under the Consumer Protection Act. See 5 GCA §32103(d) and (k). And, citing to 5 26 GCA §32201, that a violation of the Consumer Protection Act requires that an unlawful act or 27 28 practice took place in the conduct of trade or commerce. As succinctly articulated by the 29 Plaintiff, he is alleging that there "was an implied warranty of competence by Defendants in their 30 demand and acceptance of Plaintiff's $200 payment for veterinary medical services rendered to 31 3 32 The Defendant's claim for the remaining balance of the v eterinary bill was asserted by counter-claim . However, because of the Defendant's non-appearance at the answering for that claim, it was appropriately dismissed and the Defendant has not attempted to collect it. 1 his pet dog." See Memorandum of Law Supporting Motion, at p.5 (Dec. 30, 2013). "By the

2 totally incompetent actual rendering of those impliedly warranted services by Defendants, that 3 warranty was breached." /d. 4 5 In support of the argument, Plaintiff cites authority for the prosecution of consumer cases 6 against physicians. See Chapman v. Wilson, 826 S.W.2d 214 (Tex.App. 1992); Sorokolit v. 7 8 Rhodes, 889 S.W.2d 239 (Tex. 1994); and Wililiamson v. Amrani, 152 P.3d 60 (Kan.

9 2007)(overruled by statute as recognized in Kelly v. VinZant, 197 P.3d 803 (Kan. 2008)). In 10 Chapman, the plaintiff sued defendants for negligence during and after the extraction of wisdom 11 12 teeth, breach of implied warranty that their services would be performed in a good and 13 workmanlike manner, and various misrepresentations such as: (1) that they were specialists in 14 the extraction of wisdom teeth; (2) that general anesthesia would be administered; (3) that 15 16 defendants were competent to administer general anesthesia; and (4) that no further treatment 17 after the extractions would be necessary. Plaintiff asserted that these misrepresentations 18 19 constituted violations of the Deceptive Trade Practices Act ("DTPA"). Chapman, 826 S.W.2d at

20 215. The trial court granted summary judgment for the defendant on all three of plaintiffs causes 21 of action. /d. The appellate court affirmed in part and reversed and remanded in part. /d. The 22 23 court of appeals found that because the plaintiffs experts were precluded from participating in 24 the matter; he would not have been able to establish the negligence claim and that summary 25 26 judgment was appropriate. /d. at 217. With regard to the breach of implied warranty, the

27 appellate court affirmed summary judgment on the basis that Texas did not recognize such a 28 warranty but also, as in the negligence action, the inability to utilize expert testimony similarly 29 30 affected this claim and summary judgment was appropriate. /d. 217-218. The reviewing court 31 further found that the Texas Medical Liability & Insurance Improvement Act ("Medical Liability 32 Act") specifically exempted from the DTPA actions against health care providers based on 1 negligence. ld. at 219. However, because the plaintiffs alleged that the defendants made 2 knowing, as opposed to negligent, misrepresentations that the DTPA thus applied and that 3 summary judgment should not have been granted. ld. 4 5 In Sorokolit, the Supreme Court of Texas addressed the issue of whether the same 6 provision of the Texas Medical Liability Act precluded an action for knowing misrepresentation 7 8 or breach of an express warranty under the DTPA. Sorokolit, 889 S.W. 239, 240. In that case,

9 plaintiff sued the doctor for medical malpractice, breach of implied and expressed warranties, 10 and knowing misrepresentations incidental to a breast augmentation surgery. The trial court had 11 12 ruled that the plaintiff could not sue under the DTPA; however, the court of appeals reversed in 13 part and remanded, holding that the Medical Liability Act did not bar the DTPA claims for 14 breach of express warranty or claims based on knowing misrepresentation. Id. at 241. The Texas 15 16 Supreme Court concluded that the Medical Liability Act only precluded a DTPA suit against a 17 physician for negligence - "that is, a suit founded on a breach of the accepted standard of 18 19 medical care." Id. at 242. It observed that:

20 There can be no DTPA claim against a physician for damages for personal injury 21 or death if the damages result, or are alleged to result, from the physician's negligence; however, if the alleged DTPA claim is not based on the physician's 22 breach of the accepted standard of medical care, section 12.01(a) (of the Medical 23 Liability Act) does not preclude suit for violation of the DTPA. Thus, the underlying nature of the claim determines whether section 12.01(a) prevents suit 24 for violation of the DTPA. Claims that a physician or health care provider was 25 negligent may not be recast as DTPA actions to avoid the standards set forth in 26 the Medical Liability and Insurance Improvement Act.

27 889 S.W.2d at 242 (parenthetical added). The plaintiffs claim was that the physician had 28 guaranteed the results of his surgery and that he knowingly breached his express warranty of a 29 30 particular result and knowingly misrepresented his skills and the results he could achieve. ld. 31 The court held that the Medical Liability Act did not preclude suits under the DTPA for knowing 32 1. misrepresentation or breach of express warranty in cases in which a physician or health care

2 provider warrants a particular result. !d. at 243. 3 Finally, in Williamson, the Kansas Supreme Court found that the language of the Kansas 4 5 Consumer Protection Act (KCPA) was broad enough to encompass a claim regarding the 6 providing of medical care or treatment services brought by a patient against a physician for a 7 8 violation of the KCPA and that the summary judgment that was granted in favor of the defendant

9 must be reversed. Williamson, 152 P.3d 60, 72. The precise issue before the court was whether 10 the KCPA applies to a physician's professional conduct in providing treatment to a patient, 11 12 specifically, "whether a physician can be found to have engaged in deceptive acts and practices 13 in violation of K.S.A. 50-26 and unconscionable acts and practices in violation of K.S.A. 50-627 14 by knowingly making misrepresentations regarding the proposed medical treatment of willfully 15 16 concealing or failing to make disclosures of material facts ." !d. at 62. The Kansas Supreme Court 17 found that as an issue of statutory construction, the plain language of the KCPA is broad enough 18 19 to encompass the providing of medical care and treatment services within a physician-patient

20 relationship. ld at 65. It reasoned that the physician is, in the ordinary course of business, a seller 21 of or supplier of services and that a patient is a consumer of those services and that the sale of 22 23 those services is a consumer transaction all covered under the KCPA. !d. (citations omitted). 24 Nothing in the KCPA explicitly excludes physicians or other professionals from the scope of its 25 26 coverage. /d.

27 Additionally, in rejecting the defendant's contention that other courts which have dealt 28 with the issue have found that only the entrepreneurial activities of a physician fall under the 29 30 consumer protection laws; the Kansas court noted that the language common in those cases 31 contained the restriction that the consumer protection actions are applicable when the activities 32 are engaged in "trade or commerce" and that the KCPA contained no such language. !d. 69-70. 1 The court also rejected the idea that that the case could not proceed under the KCPA merely 2 because a common law cause of action exists for medical malpractice. !d. at 70-71. It found that 3 nothing prohibits the legislature from creating a statutory remedy in situations where a common- 4 5 law remedy may be available. !d. Finally, the defendant argued that the legislature had set forth a 6 comprehensive statutory scheme specifically for litigation of medical malpractice cases which 7 8 made clear that the legislature did not intend for claims against physicians to be remedied under

9 the KCPA. !d. The Supreme Court felt otherwise and found that while the legislature had passed 10 various pieces of legislation affecting various aspects of medical malpractice litigation, it has not 11 12 passed any legislation which precludes coverage for medical malpractice claims under the 13 KCPA. !d. (citing Chapman v. Wilson, 826 S.W.2d 214 (Tex.App. 1992)). 14 VI. 15 16 Guam' s Deceptive Trade Practices- Consumer Protection Act is contained in Chapter 32 17 of Title 5 Guam Code Annotated. See 5 GCA §§32101 et seq. "The general purpose of the 18 19 Consumer Protection Act is "to protect consumers against false, misleading, and deceptive 20 business practices, unconscionable actions, and breaches of warranty, and to provide efficient 21 and economical procedures to secure such protection," and shall be liberally construed in favor 22 23 of the consumer." Mendiola v. Bell, 2009 Guam 15, 33 F.3d 1088, 1095 (9th Cir. 1994), cert. denied, 514 U.S. 18 1083 (1995). Application of the FTC test to the facts of this case for each 19 representation, omission or practice alleged to be misleading drives this analysis. 20 /d. at

27 required by law, and that they failed to inform the plaintiffs of that fact. /d. Further, that this 28 omission was material in that it affected the very quality and soundness of the lots that the 29 30 plaintiffs sought to purchase and build their homes. /d. Finally, it found that the plaintiffs were 31 reasonable in assuming that all relevant subdivision laws had been complied with and that they 32 therefore had acted reasonably under the circumstances. Id. 1 2 VII. 3 The issue before this Court is whether the Plaintiffs cause of action based upon the 4 5 Deceptive Practices- Consumer Protection Act, but which implicates the Defendant's rendition 6 of veterinary services, insulates the matter from the mandatory arbitration provision of the 7 8 MMMAA.

9 From the authorities cited by the Plaintiff, it is obvious that there is a split of authority on 10 whether consumer protection statutes even apply to professional services like the practice of 11 12 medicine, the practice of law, and other professions. See Williamson v. Amrani, 152 P.3d at 67- 13 69. (citations omitted). Some of this authority consists of express statutory exemptions for 14 professional services. ld. at 67-68. See e.g., MD. CODE ANN., COM. LAW §13-104 ("This title does 15 16 not apply to: (1) The professional services of a certified public accountant, architect, clergyman, 17 professional engineer, lawyer, veterinarian, insurance company authorized to do business in the 18 19 State, insurance producer licensed by the State, Christian Science practitioner, land surveyor, 20 property line surveyor, chiropractor, optometrist, physical therapist, podiatrist, real estate broker, 21 associate real estate broker, or real estate salesperson, or medical or dental practitioner"). In fact, 22 23 Williamson was effectively overruled when the Kansas legislature specifically excluded medical 24 professionals from its consumer protection act coverage. See Kelly v. VinZant, 197 p.3d 803, 811 25 26 (Kan. 2008)( citation omitted).

27 While in other states, the question of whether attorneys, physicians, and other learned 28 professionals fall within the coverage of their consumer protection or deceptive trade practice 29 30 acts has been left to the courts and upon various rationales. Williamson, 152 P.3d at 68. 31 (discussing Quimby v. Fine, 724 P.2d 403 (Wash. 1986)(plaintiff's negligence claim did not fall 32 within the scope of the Washington consumer protection act because it related to the actual 1 competence of the medical practitioner but plaintiffs lack of informed consent claim could fall 2 within the CPA if it related to the entrepreneurial aspects of the medical practice) and other 3 cases). See also Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994) and Chapman v. Wilson, 826 4 5 S.W.2d 214 (Tex.App. 1992)(Texas Medical Liability and Insurance Act precludes a consumer 6 protection action founded upon a breach of the accepted standard of care, ie. , negligence); 7 8 Rumbin v. Baez, 727 A.2d 744 (Conn.App.Ct. 1999)(citing Haynes v. Yale-New Haven Hospital,

9 699 A.2d 964 (Conn. 1997)("Although physicians and other health care providers are subject to 10 CUPTA (Connecticut Unfair Trade Practices Act), only the entrepreneurial or commercial 11 12 aspects of the profession are covered, just as only the entrepreneurial aspects of the practice of 13 law are covered by CUPTA"); Proctor v. Chattanooga Orthopaedic Group, P.C., 270 S.W.2d 56 14 (Tenn.Ct.App. 2008)(Finding error in trial court's dismissal of plaintiffs claim that physicians 15 16 group misled him to believe that a particular physician was still a part of the group and for 17 charging plaintiff for a more expensive procedure than the one actually performed was not 18 19 actionable under the consumer protection act.); and Preston v. Stoops, 285 S.W.3d 606 20 (Ark.2008)(consumer protection act not applicable to practice of law because the Supreme Court 21 is the only entity responsible for regulating the practice of law and the professional conduct of 22 23 attorneys at law). 24 Finally, there are cases in which a court has held that an exemption from the consumer 25 26 protection statute exists for those engaged in professional services by virtue of the fact that the

27 professions are regulated by governmental bodies. See e.g., Gadson v. Newman, 807 F.Supp. 28 1412, 1417 (C.D.Ill. 1992)('medical and legal professions are afforded immunity from the 29 30 Consumer Fraud Act primarily, because, unlike other commercial services, medical and legal 31 bodies are regulated by governmental bodies"). 32 1 But the applicability of Guam's Deceptive Practice Act has never been an issue before 2 the Court in this case. As observed by the Plaintiff, the Defendant herein did not file a motion to 3 dismiss the case because of the Act's inapplicability. Indeed, if the Defendant had filed such a 4 5 motion then the Court, in addition to analyzing the authorities herein cited, would also have to 6 consider the fact that under the Medical Malpractice Mandatory Arbitration Act: 7 8 The provisions of Title 5, Chapter 32, Guam Code Annotated, entitled, Deceptive Trade Practices - Consumer Protection Act, shall not be applicable to this chapter 9 and to the extent any of the provisions of this chapter are inconsistent or conflict 10 with the provisions of the Deceptive Trade Practices - Consumer Protection Act or any other provision of law, the terms of this chapter shall prevail and control. 11 12 10 GCA §10146. 13 14 What is at issue is whether the MMMAA has no applicability to this Deceptive Trade 15 Practice action. The Plaintiff cites to no authority that a consumer protection cause of action 16 17 precludes the application of the MMMAA. To the contrary, the remedies provided by the Guam

18 Consumer Protection Act are not exclusive. See 5 GCA §32105. The remedies are in addition to 19 any other procedures or remedies for any violation or wrongful conduct provided for in any other 20 21 law. See 5 GCA §32105(a). Merely alleging that a plaintiff is suing under the Consumer 22 Protection Act does no more than indicate a preference for seeking redress (and because of the 23 Attorney General's involvement a narrowing of the remedies available) from a defendant. 24 25 However, if viewed as an attempt to circumvent the MMMAA, it has been held that "claims that 26 a physician or health care provider was negligent may not be recast as DTPA actions to avoid the 27 28 standards set forth in the Medical Liability and Insurance Improvement Act." Sorkolit v. Rhodes, 29 889 S.W.2d 239, 242 (Tex.1994). 30 Because of the lack of authority or argument to the contrary, the Court is unable to 31 32 conclude that invocation of the Act translates to the preclusion of the mandatory arbitration 1 provisions of the MMMAA especially since the whole reason for Plaintiffs claim against the

2 Defendant herein was the alleged incompetence of the veterinary services that were provided. 3 CONCLUSION 4 5 Therefore, the Court concludes that even if it had the benefit of Plaintiffs additional 6 pleadings and the authority cited therein, the Plaintiff would still not be entitled to relief from its 7 8 determination that the mandatory arbitration provision of the MMMAA applies to this case and

9 that the matter be stayed. 10 NOW, THEREFORE, IT IS HEREBY ORDERED that, if it has not already been 11 12 done, either Defendant or Plaintiff submit an application for stay of the instant proceedings and 13 that the parties proceed as provided by the Medical Malpractice Mandatory Arbitration Act. 14 15 16 Dated this _ _ day of _ _M_A_Y_-_9_Z_0_14__, 20_ __ 17 18 19 20 21 Honorable Alberto E. Tolentino, MAGISTRATE JUDGE, 22 SUPERIOR COURT OF GUAM 23 24 25 26 27 28 29 30 31 32