The State of Texas Ex Rel. Joshua LaFountain v. BLT Management Company, LLC N/K/A BLT Support Services, LLC

ACCEPTED
15-25-00067-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
11/10/2025 2:36 PM
No. 15-25-00067-CV CHRISTOPHER A. PRINE
CLERK
________________________________________________________________
FILED IN
15th COURT OF APPEALS
In the Fifteenth Court of Appeals AUSTIN, TEXAS
Austin, Texas 11/10/2025 2:36:42 PM
__________________________________________________________________
CHRISTOPHER A. PRINE
Clerk

The State of Texas ex. rel. Joshua LaFountain
Appellant,

v.
BLT Management Company, LLC n/k/a BLT Support Services, LLC, et. al.
Appellees.

On Appeal from the 126th Judicial District Court, Travis County
__________________________________________________________________
REPLY BRIEF FOR APPELLANT STATE OF TEXAS
ex. rel. JOSHUA LAFOUNTAIN
__________________________________________________________________

Respectfully Submitted,

/s/James R. Tucker
JAMES R. TUCKER
State Bar No. 20272020
5522 Ellsworth Ave.
Dallas, Texas 75206
(214) 505-0097
(214) 599-8874[fax]
rusty@rustytuckerlaw.com

ATTORNEY FOR APPELLANT STATE OF
TEXAS ex. rel. JOSHUA LAFOUNTAIN
Oral Argument Requested
TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................. i.

I. INTRODUCTION AND OVERVIEW............................................. 1
II. ARGUMENT ……………………………………………………… 2
A. The Appellees Misrepresented that “Nothing”
Took Place in this Case Until 2024…………………………………2

B. The Defendants’ Obfuscation in “Producing” Documents
In the Manner Presented Was Effectively No Production at All……4

C. There is at a Minimum A Material Issue of Fact as to Whether
Complete Charts Were Produced by the Defendants………………..8

D. Relator’s Allegations Regarding Fluoride Breach Were
Properly Disclosed in Relator’s Fourth Amended Petition…………..9

E. There Was No Prejudice to the Defendants by
Relator Offering to Amend the Scheduling Order
to Extend the Discovery and Other Deadlines………………………10
F. There Was No Prejudice to the Defendants Due to
the Alleged Late Designation of Experts……………………………11

G. The Defendants Refused to Produce Sufficient Documents
to Allow Relator to Properly Calculate the Amount of
Penalties and Monies He Sought to Recover at Trial………………..12

CONCLUSION AND PRAYER……………………………………………….12

CERTIFICATE OF COMPLIANCE…………………………………………...13

CERTIFICATE OF SERVICE…………………………………………………14

i.
TO THE HONORABLE FIFTEENTH COURT OF APPEALS:

I. INTRODUCTION AND OVERVIEW

What the Appellees have pulled off to date in benefitting from its own

steadfast refusal to produce documents and then claim the No-Evidence Motions for

Summary Judgment should be granted because of the lack of evidence is shocking

and Appellant strongly urges this Court to correct this injustice. Relator submits this

Reply Brief to correct many inaccuracies in the Appellees’ Brief as to facts and to

clarify certain issues raised by Appellees which when clarified should be more than

sufficient to justify a reversal of the trial court’s rulings.

One area that Appellant has created a bona fide issue of material fact

precluding summary judgment has to do with the Appellees billing for First Dental

Home Visits to Medicaid for thousands of patients while not meeting the Medicaid

criteria for reimbursement. One of the 11 requirements (requirement number 8) for

Medicaid to reimburse for a First Dental Home Visit (“FDH”) per the Texas Health

and Human Services Commission was that topical fluoride varnish had to be applied

to all of the children’s erupted teeth during the visit. CR. 629. Relator personally

witnessed that Bear Creek dentists started billing for this procedure in 2007;

however, none of the Bear Creek offices had any fluoride varnish until late 2009!

CR. 607, par. 14. Medicaid was billed thousands of times for Code D0145 during

2007-2009 from all Bear Creek offices knowing that no topical fluoride varnish was
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applied as required. Id. The Defendants were asked in discovery for documents

proving when they started using fluoride varnish but the Defendants objected to

doing so, which in Appellant’s view is very telling because they had every

opportunity to refute Relator’s allegations in this regard and failed to do so.

II. ARGUMENT

A. The Appellees Misrepresented that “Nothing”
Took Place in this Case Until 2024

In their Appellee’s Brief, the Appellees make the incorrect statement in a

heading that Relator filed suit in 2012 “but does nothing until 2024”. Brief, p. 2. This

is an absolute falsehood. In current counsel’s defense, they only entered the case in

late 2023, but they knew or should have known by speaking to prior defense counsel

that was not true. There was a substantial amount of activity when the government

initially intervened in the case, took it to the administrative courts, only to pull it out

of the administrative Courts and took years deciding what to do before ultimately

declining the case years later. RR, Vol. 2, p.6, l.30-25; p. 7 lines 1-21. In doing so,

the AG’s office made clear to counsel for Relator that declining the case had nothing

to do with the merits of the case, telling counsel that : “…I know it's a good case,

but we just don't have the manpower to stay on your case. So I'm going to have to

un-intervene in your case." RR Vol. 2, p. 7, lines 19-21. As counsel for Relator told

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the Court at the hearing, “you know, they just didn't have the manpower to pursue

this. So, it had nothing to do with the merits. RR Vol. 3, p. 21, lines 2-4.

After the state’s declination (again after initially intervening in the case) , as

explained at the hearing on this matter, for a period of several years after that, despite

not yet having a scheduling order in place, the Relator and the Defendants did a

considerable amount of discovery in the form of submitting multiple subpoenas for

data pertaining to certain CPT Codes to HHSC and obtaining data pertaining to those

codes. As counsel for Relator explained to the Court at the hearing;

MR. TUCKER: Okay. Yeah. So the 2018 to
2023, there was another law firm involved with Bear
Creek. And we decided jointly to undergo what we call
informal discovery. We talked about, well, we need to
get a specific judge assigned and get a scheduling order
in place.
But then we -- the more we talked, we
said, "Look. Why don't we request data from HHSC
informally and go through that." And we had meetings back and forth
through the years. COVID, of course,
complicated that process, getting data from HHSC. You
know, what would easily take a month or two was taking
six or eight months and stuff.
So, you know, long story short, it just
wasn't productive. And I'm glad we entered -- finally
entered into a scheduling order early last year when
they came on board. And I welcomed that, because what
we were doing before just wasn't working. RR, Vol. 2 p. 42, Lines17-25; p.
43, lines 1-9.

There were substantial delays in obtaining that data from HHSC due to covid

and other factors. Id. Following that, the Defendants would produce sample charts
3
on an agreed upon basis for those CPT Codes, but this was delayed for months at a

time by the Defendants –not Relator—in obtaining those charts. Id. The matter of

how long it was taking for the Defendants was solely in their control, not in the hands

of the Relator. There were several meetings between Relator’s counsel and defense

counsel analyzing that data over a period of years until 2023 when present counsel

made their appearance. Id. So to say that Relator did “nothing” until 2024 is simply

not true, as there was never any period of time when “nothing” was transpiring.

B. The Defendants’ Obfuscation in “Producing” Documents
In the Manner Presented Was Effectively No Production at All

To say that the Appellees produced substantial amounts of hard copy

documents is an understatement. Brief, p. 4. To Relator’s counsel’s dismay,

however, when he showed up to review documents in May of 2024, he was shown

a warehouse containing what he estimated to be approximately 500 boxes of

documents and several filing cabinets. RR. Vol. 2, p.8, lines 17-24; CR. 240.

During the “production” of documents (more akin to obfuscating the

production of documents) an overwhelming majority all of the boxes were labelled

“end of day reports” (which documents were not even requested to be produced!),

and there was no organization whatsoever to have documents identified responsive

to specific requests. CR. 240. To that end, on May 21, 2024, counsel for Relator send

an email to counsel for Bear Creek requesting that documents be produced in a

4
manner that clearly indicates what documents are responsive to which requests,

stating that it was not appropriate for Bear Creek to produce hundreds of boxes of

documents making it next to impossible to go through them all hoping to find the

documents requested. CR. 240, 241. To the Relator counsel’s astonishment,

however, counsel for Bear Creek responded that the documents requested were

produced how they were kept in the ordinary course of business! CR. 241. Are

documents pertaining to charts reflecting whether fluoride varnish was applied for

example really kept in a box labelled “end of day reports” in the ordinary course of

business?

With all due respect, the Bear Creek Defendants should not be able to in effect

hide documents in 500 boxes labeled “end of day reports” and make Relator’s

counsel dig through those boxes for well over a year trying to find responsive

documents. The Bear Creek Defendants should have been compelled to produce

documents as repeatedly requested by Relator’s counsel that were responsive to

specific requests instead of pointing to 500 boxes labelled “end of day reports” and

say that’s how documents are kept in the ordinary course of business and good luck

finding anything you requested. The Appellees remarkably contend in the context of

these facts that “The responding party must either produce documents and tangible

things as they are kept in the usual course of business or organize and label them to

correspond with the categories in the request.” Brief, pp. 33-34. Again, common

5
sense dictates that the Defendants should have been compelled to “label them to

correspond with the categories in the request” given the 500 boxes of documents and

finding responsive documents (if any) would have been likely over a year process to

“discover a needle in a haystack”. Any assertion that that is how the documents were

kept in the ordinary course of business is laughable.

It is absolutely true that “the Bear Creek Defendants steadfastly objected

to producing ANY documents in response to over 60 requests” as asserted in

Appellant’s Brief (p. 8). The problem with the Appellees position in this regard is

that the hearing on Relator’s Motion to Compel was pertaining to Relator’s Second,

Third and Fourth Requests for Production of Documents, the responses to which

were not filed until well AFTER May of 2024. Their responses to these requests

were filed on August 2, 2024, CR. 413 (Second Request), September 12, 2024, CR

428 (Third Request), and January of 2025, CR 433, (Fourth Request), long after the

initial “production” of documents. How can the Bear Creek Defendants possibly take

the position at the hearing that they had produced documents in response to Relator’s

Second, Third and Fourth Requests for Production in May of 2024 when ALL of

those requests were submitted well after the May 8, 2024 “production” of

documents? How could they claim to have produced documents that they didn’t even

know were going to be requested yet? And was Appellant supposed to have a crystal

ball as to what he might request in the future?

6
So the Appellees’ contention that the documents produced in May 2024 were

responsive to many of his subsequent requests (Brief, p. 29) is irrelevant as after the

Second, Third and Fourth Requests for Production were submitted, the Defendants

objected to EVERY request and did not indicate that they were willing to produce a

single document (subject to their objections or otherwise) in response to ANY of

those requests. CR 426-445. Nor was counsel for the Relator informed that any

documents responsive to those requests were going to be made available for copying

at the warehouse or otherwise if the documents were still at the warehouse.

Accordingly, the Court’s Ruling in failing to compel the production of ANY of these

documents was an absolute abuse of discretion.

In their Brief, the Appellees assert that LaFountain’s counsel spent less than

two hours reviewing the hard copy documents and patient charts produced to him,

marked a small number for copying, but never actually got any documents copied.

Brief, p. 5. The reason for this was as explained to counsel for the Defendants at the

time was that rather than randomly copying documents out of approximately 500

boxes of documents as Relator initially planned, Relator decided to hire a data

analytics expert at great expense to perform a detailed analysis of HHSC data to

ascertain what charts likely showed evidence of fraud, whereupon Relator requested

those specific charts and documents in discovery. As counsel for Relator explained

at the hearing on the Motion to Compel, rather than copy random documents he hired

7
a data analytics expert to narrow the scope given the magnitude of documents and

charts:

Your Honor, again, I decided instead of just copying a bunch of random
charts, I would go to the expense to hire a data analytics expert to help me
identify and narrow the scope of the charts that contained likely indicia of
fraud. And that's the route I took.

RR. Vol. 2, p. 51, lines 11-16. See also RR Vol. 2, p. 9, lines 14-25; p. 10, lines 1-
4.

This proved a much more fruitful direction for obtaining meaningful charts

with likely fraud, and some of the requested charts did indeed back up that analysis

and contained substantial evidence of fraud. So the decision to not copy random

boxes and target charts likely to contain fraud identified by a data analytics expert

was a strategic one that simply made more sense. Id.

C. There is at a Minimum A Material Issue of Fact as to Whether
Complete Charts Were Produced by the Defendants

The Appellees assert that the Bear Creek custodian of records explained that

all of the electronic patient files were complete and accessible when she prepared

and produced the two thumb drives and the laptop: Brief, p. 8. She even made the

ridiculous assertion without any foundation whatsoever that “…I cannot speak to

what actions [LaFountain or his] counsel took in altering the devices or data.” Id.

Why would Relator possibly do that? His goal was to obtain full and complete charts

as requested to prove his case. Essentially the Appellees are saying that a prominent

expert dentist hired by Relator was lying when he testified in his Affidavit that the

8
files were not complete with x-rays as explained in detail in Appellant’s Brief. APP.

1-6. By definition there is a disputed issue of material fact in this regard as the

Relator had an Affidavit saying the charts produced were not complete (Id.) and the

Defendants produced an Affidavit claiming they were, so summary judgment should

have been precluded on that basis.

The Appellees represent in their Brief that “at the hearing Bear Creek

demonstrated to the court, on an identical mirrored laptop, that all of the requested

patient files were on the laptop, and all of the x-ray images on the laptop could be

opened and viewed”. Brief, p.11. (emphasis added). The Appellees did no such thing.

As explained in Appellant’s initial Brief, however, the Appellees showed that two

of the charts out of approximately 200 involved contained x-rays. RR Vol. 2, 36-38.

Appellant agrees that a few of the charts were complete, but as Dr. Olson testified

in his Affidavit most were not complete. APP. 1-6.

D. Relator’s Allegations Regarding Fluoride Breach Were
Properly Disclosed in Relator’s Fourth Amended Petition

The Appellees contend that that Relator’s allegations regarding the use of

fluoride varnish were subject to automatic exclusion because they were never

disclosed in discovery responses, nor were any such allegations included in

LaFountain’s lengthy petition. Brief, p. 16. This simply is not true. Relator requested

items in discovery related to this allegation (CR 437-438; Requests No. 18, 19 and

9
21) and further made extensive allegations in his Fourth Amended Petition

pertaining to fluoride varnish as it relates to Relator itemizing his allegations of

violations of the TMFPA:

(h)…The only reason that two one surface fillings were billed instead of one
two surface filling was that it was more profit (i) knowingly committing
Unlawful Acts by the Bear Creek Dental Clinics buy submitting claims to
Medicaid which did not comply with Medicaid guidelines for reimbursement
pertaining to the First Dental Home Initiative. With respect to applying
fluoride varnish under that program, it was a requirement that 3 sets of
paperwork be filled out, including a questionnaire for the parent to fill out
before treatment. Patients had topical fluoride applied instead of fluoride
varnish and Medicaid was billed and paid without any of the required
paperwork or documentation in the chart of the patient before doing so.

(i) committing Unlawful Acts and knowingly submitting claims for
reimbursement from Medicaid which did not comply with Medicaid
guidelines for reimbursement pertaining to the First Dental Home
Initiative. With respect to applying fluoride varnish under that
program, it was a requirement that 3 sets of paperwork be filled
out, including a questionnaire for the parent to fill out before
treatment. Patients had topical fluoride applied instead of fluoride
varnish and Medicaid was billed and paid without any of the
required paperwork or documentation in the chart of the patient
before doing so. Fourth Amended Petition, par. 56(h) and (i);
CR 33. (emphasis added).

E.There Was No Prejudice to the Defendants by
Relator Offering to Amend the Scheduling Order
to Extend the Discovery and Other Deadlines

The Appellees contend that it was not an abuse of discretion for the trial

court to consider the entire timetable and conclude that Bear Creek would be

10
prejudiced because it could not designate its own experts, complete discovery, or

prepare for trial in April given LaFountain’s untimely designations. This ignores the

fact that Relator filed a Motion to Amend Scheduling Order offering to extend the

discovery deadline in part so that the Defendants would have ample time to do all of

those things after documents requested were produced.

F. There Was No Prejudice to the Defendants Due to
the Alleged Late Designation of Experts

With respect to Appellant’s contention that there was a lack of prejudice due

to his alleged late designation of experts (which was caused in part by the delay by

the Defendants due to the delay in providing documents such that reports could be

prepared) because he provided Reaves’ initial report and an e-mail explanation of

her testimony to Bear Creek’s counsel in March 2024. (Brief, pp. 21-22), the

Appellees improperly allege that “In support of that representation, his citations to

the Clerk’s Record are to his own pleadings in the trial court, not to any actual

evidence of such alleged communications such as copies of e-mails or a declaration.

Brief, pp. 25-26. Such was not the case, however, as Relator described in detail in

his Appellant’s Brief and references to the record the precise content of the e-mails

in question.

11
G. The Defendants Refused to Produce Sufficient Documents
to Allow Relator to Properly Calculate the Amount of
Penalties and Monies He Sought to Recover at Trial

The Appellees contended that an interrogatory response states that LaFountain

has not yet calculated the amount of money he seeks to recover at trial (which was

just 2 months away), and cannot identify (1) the number of “Unlawful Acts” he

contends Defendants committed, or (2) the amount of civil penalties he will seek for

each Unlawful Act. Brief, p. 39. This allegation ignores the fact that Relator couldn’t

do those things because the Defendants withheld documents from Relator that would

have allowed him to make the calculations needed.

CONCLUSION AND PRAYER

For the reasons set forth herein, Relator contends that the trial Court abused

its discretion by striking the testimony of Appellant’s experts Dr. Olson and Sally

Reaves, and further abused its discretion by refusing to grant Relator’s Motion to

Compel Production of Documents and Motion to Amend Scheduling Order. Further,

this Court should reverse the trial court’s decision granting the Bear Creek

Defendants’ Second Amended No-Evidence Motions for Summary Judgment, as it

should have been denied in all respects under the legal sufficiency standard. Plaintiff

submitted enough evidence in the form of the Affidavit of Relator that shows that

there are genuine issues of material fact with respect to all elements of all TMFPA

causes of action in his Fourth Amended Petition, especially the allegations pertaining

12
to fluoride varnish not being applied as required. The Relator certainly provided

more than a scintilla of evidence with respect to each element of each cause of action

against the Bear Creek Defendants, which is all that Texas law requires.

Accordingly, the Bear Creek Second Amended No-Evidence Motions for Summary

Judgment should have been denied, and Appellant requests that this Honorable Court

reverse the lower court’s granting of said Motion.

Respectfully Submitted,
By: /s/James R. Tucker
JAMES R. TUCKER
State Bar No. 20272020
5522 Ellsworth Ave.
Dallas, Texas 75206
(214) 505-0097
(214) 599-8874[fax]
rusty@rustytuckerlaw.com

ATTORNEY FOR APPELLANT
STATE OF TEXAS ex. rel.
JOSHUA LAFOUNTAIN

CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word, I certify that this brief
contains fewer than 7,500 words, excluding portions of the brief exempt from
the word count requirement under Texas Rule of Appellate Procedure 9.4(i)(1). I
further certify that it complies with the typeface requirements of Texas Rule of
Appellate Procedure 9.4(e), as it was produced on a computer, printed in a
conventional typeface no smaller than 14-point.

/s/ James R. Tucker
James R. Tucker

13
CERTIFICATE OF SERVICE
I certify a true and correct copy of the foregoing Appellant’s Reply Brief has

been sent via e-file and serve and e-mail on November 10, 2025, to:

CRAIG D. CHERRY
Bar No. 24012419
Email: ccherry@cjsjlaw.com
CHERRY JOHNSON SIEGMUND JAMES, PLLC
7901 Fish Pond Road, 2nd Floor
Waco, Texas 76710

JANE WEBRE
State Bar No. 21050060
Email: jwebre@scottdoug.com
SCOTT DOUGLASS & MCCONNICO LLP
303 Colorado Street, Suite 2400
Austin, TX 78701

CHRISTOPHER S. AYRES
State Bar No. 24036167
Email: csayres@ayreslawoffice.com
R. JACK AYRES, JR.
State Bar No. 01473000
Email: rjayres@ayreslawoffice.com
AYRES LAW OFFICE, P.C.
8140 Walnut Hill Lane, Suite 830
Dallas, Texas 75231

Attorneys for Appellees

/s/James R. Tucker
JAMES R. TUCKER

14
15
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

James Tucker on behalf of James Tucker
Bar No. 20272020
rusty@rustytuckerlaw.com
Envelope ID: 107871076
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Bear Creek Appellants Reply Brief
Status as of 11/10/2025 2:51 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Michaelle Peters mpeters@scottdoug.com 11/10/2025 2:36:42 PM SENT

Luis Garcia lgarcia@scottdoug.com 11/10/2025 2:36:42 PM SENT

Christopher Davis 24050483 cdavis@grayreed.com 11/10/2025 2:36:42 PM SENT

Rowe Ayres 1473000 rjayres@ayreslawoffice.com 11/10/2025 2:36:42 PM SENT

Angela Brown 24034533 abrown@grayreed.com 11/10/2025 2:36:42 PM SENT

Jane Webre jwebre@scottdoug.com 11/10/2025 2:36:42 PM SENT

Nicollette Morton filings@ayreslawoffice.com 11/10/2025 2:36:42 PM SENT

Christopher Ayres csayres@ayreslawoffice.com 11/10/2025 2:36:42 PM SENT

Associated Case Party: Joshua LaFountain

Name BarNumber Email TimestampSubmitted Status

James Tucker 20272020 rusty@rustytuckerlaw.com 11/10/2025 2:36:42 PM SENT

Associated Case Party: Buckner Marketplacce Dental, P.A. et. al.

Name BarNumber Email TimestampSubmitted Status

Craig Cherry ccherry@cjsjlaw.com 11/10/2025 2:36:42 PM SENT