Opinion issued October 4, 2012.




                                  In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NO. 01-12-00253-CV
                         ———————————
CVS PHARMACY, INC., CAREMARK, L.L.C., CVS RX SERVICES, INC.,
          AND CAREMARK PHC, L.L.C., Appellants
                                    V.
 KENT BLAND BALLARD, JUDITH BALLARD CONNORS, AND GARY
 THOMAS BALLARD, INDIVIDUALLY AND AS CO-EXECUTORS OF
THE ESTATE OF MARGARET BALLARD, DECEASED, AND THOMAS
HUGH BALLARD, AS SURVIVING SPOUSE OF MARGARET BALLARD,
                   DECEASED, Appellees


             On Appeal from the 189th Judicial District Court
                          Harris County, Texas
                   Trial Court Case No. 2011-52145
                          MEMORANDUM OPINION

      In this interlocutory appeal,1 appellants, CVS Pharmacy, Inc., Caremark,

L.L.C., CVS RX Services, Inc., and Caremark PHC, L.L.C. (collectively, “CVS”),

challenge the trial court’s order denying its motion to dismiss the health care

liability claim2 made against them by appellees, Kent Bland Ballard, Judith Ballard

Connors, and Gary Thomas Ballard, individually and as co-executors of the estate

of Margaret Ballard, and Thomas Hugh Ballard, as surviving spouse of Margaret

Ballard (collectively, the “Ballards”), for the wrongful death3 of Margaret Ballard.

In its sole issue, CVS contends that the trial court erred in concluding that the

Ballards’ medical expert report is sufficient and not dismissing the Ballards’ claim.

      We affirm.

                                    Background

       In their original petition, the Ballards assert a health care liability claim

against Dr. Bhakti Khatri, Medical Clinic of Houston, L.L.P., and CVS. The

Ballards allege that Dr. Khatri negligently prescribed Margaret Ballard

“Methotrexate with severely incorrect dosage instructions” and failed “to recognize

the medication error” when Margaret returned to Dr. Khatri with “Methotrexate


1
      See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9) (Vernon Supp. 2012).
2
      See id. § 74.001(a)(13) (Vernon Supp. 2012).
3
      See id. §§ 71.001, 71.021 (Vernon 2008).
                                          2
toxicity symptoms.” The Ballards further allege that CVS negligently failed “to

recognize and correct a dangerous drug overdose” and “to fill the prescription in

compliance with Texas Pharmacy Practice Standards.”

      The Ballards attached to their petition an expert report4 authored by Dr. Bill

Pittman, a practicing pharmacist. In the report, Dr. Pittman stated that Dr. Khatri

prescribed Margaret “90 methotrexate 2.5 mg tables to be taken one tablet by

mouth every day,” but he defined an “appropriate dose” of Methotrexate to be no

more than one tablet of 2.5, 5, or 7.5 milligrams “taken once a week.” Dr. Pittman

concluded that the overdose was a “dangerous error” that “resulted in [Margaret’s]

suffering and eventual death.”

      Dr. Pittman then quoted the Texas Pharmacy Act, which states that a

pharmacist may be disciplined if he has been “negligent in the practice of

pharmacy.”5 In addition, he cited the Texas Pharmacy Rules as follows,

      281.7 Grounds for Discipline for a Pharmacist License

            (a)(13) Failing to practice pharmacy in an acceptable manner
                     consistent with the public health and welfare.

      291.73(b) Pharmacist-in-charge.

            (2)        Responsibilities. The Pharmacist-in-charge shall have
                       the responsibility for, at a minimum, the following:

4
      See id. § 74.351 (Vernon 2011) (requiring expert report to be served in health care
      liability claims).
5
      See TEX. OCC. CODE ANN. § 565.001(a)(13) (Vernon 2012).
                                           3
                       (B)       Ensuring that drug and/or devises are
                                 prepared for distribution safely, and
                                 accurately as prescribed;

      291.32(c) Pharmacists

             (F)       A dispensing pharmacist shall ensure that the drug is
                       dispensed and delivered accurately as prescribed . . . .6

Noting that a “prescribing physician is to be called any time a pharmacist has a

question about a prescription,” Dr. Pittman concluded that CVS’s failure “to

recognize and correct the prescription error” constituted a “breach of the

pharmacist’s duty to comply with the standard of care expected of prudent Texas

pharmacists.”

      Under a section of his report entitled “Standard of Care in Pharmacy

Practice,” Dr. Pittman further stated,

      In this case, a reasonably prudent pharmacist would have:

      1.     Carefully examined the methotrexate prescription;

      2.     Input (or overseen a technician’s input) of accurate patient data
             into the computer;

      3.     Performed a Drug Utilization Review to ensure, among other
             requirements, that the correct dosage was being dispensed;

      4.     Noticed the overdose, called the physician and corrected the
             prescription[;] then



6
      22 Tex. Admin. Code §§ 281.7, 291.32, 291.73 (2012) (Tex. St. Bd. of Pharmacy).
                                          4
      5.     Dispensed the correct number and strength of the prescribed
             drug, properly labeled with the correct directions for use.

Dr. Pittman asserted that CVS had not “completely met” the standards of a

reasonably prudent pharmacist and had been “negligent in the practice of pharmacy

by failing to recognize and correct a dangerous drug overdose.”

      CVS objected to Dr. Pittman’s expert report and filed a motion to dismiss

the Ballards’ claim. In its motion, CVS argued that Dr. Pittman’s expert report is

“wholly conclusory as to his argument that the amount prescribed and properly

dispensed constitutes an overdose,” “[f]ails to cite the actual applicable standard of

care for pharmacies,” “[f]ails to identify any of the alleged pharmacy defendants

by the name(s) under which they have been sued,” and is “insufficient to establish

causation.”7 After a hearing, the trial court denied the motion to dismiss.

                                Standard of Review

      We review a trial court’s decision on a motion to dismiss a health care

liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P.,

189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court

abuses its discretion if it acts in an arbitrary or unreasonable manner without


7
      The Ballards later served an expert report, authored by Dr. Spencer Wilking,
      which addressed only the element of causation. CVS objected to Dr. Wilking’s
      report and filed a separate motion to dismiss, but the trial court overruled the
      motion. CVS does not appeal that ruling.
                                          5
reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539

(Tex. 2010). When reviewing matters committed to the trial court’s discretion, we

may not substitute our own judgment for that of the trial court. Bowie Mem’l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its

discretion merely because it decides a discretionary matter differently than an

appellate court would in a similar circumstance.      Harris Cnty. Hosp. Dist. v.

Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

                          Sufficiency of Expert Report

      In its sole issue, CVS argues that the trial court erred in denying its motion

to dismiss the Ballards’ health care liability claim because Dr. Pittman’s expert

report “failed to identify the applicable standard of care” and “failed to provide a

fair summary of how CVS breached the standard of care.” CVS also argues that

the Ballards’ expert report constitutes “no report” because the Ballards failed “to

serve one or more expert reports for each of the pharmacy entities they named in

their complaint.”

      A health care liability claimant must provide each defendant health care

provider with an expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351

(Vernon 2011); Gray, 189 S.W.3d at 858. The expert report must provide a fair

summary of the expert’s opinions as of the date of the report regarding the

applicable standards of care, the manner in which the care rendered by the health

                                         6
care provider failed to meet the standards, and the causal relationship between that

failure and the injury, harm, or damages claimed. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(6).

      If a defendant files a motion to dismiss challenging the adequacy of the

claimant’s expert report, the trial court shall grant the motion to dismiss only if it

appears to the court, after a hearing, that the report does not represent an objective

good faith effort to comply with the definition of an expert report. Id. § 74.351(l).

The only information relevant to the inquiry is that contained within the four

corners of the document. Palacios, 46 S.W.3d at 878. Although the claimant need

not marshal all of his proof in the report, the report must include the expert’s

opinion on each of the elements identified in the statute. See id. at 878–79; Gray,

189 S.W.3d at 859.

      In setting out the expert’s opinions, the report must provide enough

information to fulfill two purposes to constitute a good faith effort. Palacios, 46

S.W.3d at 879. First, the report must inform the defendant of the specific conduct

the claimant has called into question. Id. Second, the report must provide a basis

for the trial court to conclude that the claim has merit. Id. A report that merely

states the expert’s conclusions does not fulfill these two purposes. Id. The expert

must explain the basis of his statements to link his conclusions to the facts. Bowie,

79 S.W.3d at 52. However, a claimant need not present evidence in the report as if

                                          7
he were actually litigating the merits. Palacios, 46 S.W.3d at 879. Furthermore,

the report may be informal in that the information in the report does not have to

meet the same requirements as the evidence offered in a summary-judgment

proceeding or trial. Id. We review the sufficiency the report by looking at the four

corners of the report. See Palacios, 46 S.W.3d at 878.

Standard of Care

      CVS first asserts that Dr. Pittman’s report “failed to articulate the standard

of care for each defendant.” CVS argues that Dr. Pittman’s report presented “no

evidence of the applicable standard of care” because the stated standard of care is

“plainly erroneous,” “vague and cursory,” and based on “irrelevant or contrary

statutes and rules.”

      Identifying the standard of care in a health care liability claim is critical:

whether a defendant breached his or her duty to a patient cannot be determined

absent specific information about what the defendant should have done differently.

Id. at 880. While a “fair summary” is something less than a full statement of the

applicable standard of care and how it was breached, even a fair summary must set

out what care was expected, but not given. Id. When a claimant sues more than

one defendant, the expert report must set forth the standard of care for each

defendant and explain the causal relationship between each defendant’s individual

acts and the injury. See Doades v. Syed, 94 S.W.3d 664, 671 (Tex. App.—San

                                         8
Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex. App.—

Houston [14th Dist.] 2001, no pet.). However, when each defendant owes the

same duty to the patient, the claimant is not required to specifically state the same

standard of care for each individual defendant. See Rittger v. Danos, 332 S.W.3d

550, 556–57 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (stating that claimants

“are not required to specifically state the same standard of care for each individual

physician practicing on the same patient when each physician owes the same duties

to the patient.”); Romero v. Lieberman, 232 S.W.3d 385, 391–92 (Tex. App.—

Dallas 2007, no pet.) (holding that expert report was sufficient when it stated

standard of care for “any medical doctor” for treatment of “septic shock” and all of

defendants were doctors who “participated in treating this condition”); In re

Boone, 223 S.W.3d 398, 405–06 (Tex. App.—Amarillo 2006, orig. proceeding)

(holding that export report was sufficient when it ascribed same standard of care to

physicians and physician’s assistant).

      Here, Dr. Pittman evaluated “the manner in which the care and supervision

rendered by the personnel of CVS/Caremark Pharmacy stood in relation to the

standard of care.” The report states Dr. Pittman’s asserted standard of care for

pharmacists, and each named defendant is either a pharmacy or its parent

company. When a party’s alleged health care liability is purely vicarious, a report

that adequately implicates the actions of that party’s agents or employees is

                                         9
sufficient. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008);

see also Mariner Health Care of Nashville, Inc. v. Robins, 321 S.W.3d 193, 206

(Tex. App.—Houston [1st Dist.] 2010, no pet.). Accordingly, we hold that Dr.

Pittman’s expert report articulated a standard of care for each of the named

defendants.

      Regarding the sufficiency of the articulated standard of care, CVS argues

that Dr. Pittman’s citations to the Texas Occupations Code and the rules

promulgated by the Texas Pharmacy Board are “irrelevant” because courts “have

declined to hold that even specific provisions regulating pharmacist conduct

impose a standard of care.” See, e.g., Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d

455, 466–67 (Tex. App.—Austin 2000, pet. denied) (holding that administrative

rules did not impose legal duty on pharmacists to warn purchasers of potential side

effects). CVS further argues that even if the statutes and administrative rules are

relevant, they are “contrary” to the Ballards’ position because they actually

“indicate that CVS acted properly,” noting that the administrative rules cited by

Dr. Pittman advise pharmacists to dispense drugs “safely and accurately as

prescribed.” See 22 Tex. Admin. Code § 291.32(b)(2)(B) (2012) (Tex. St. Bd. of

Pharmacy). It argues that because the Ballards allege that Dr. Khatri prescribed the

overdose and pharmaceutical staff “accurately” dispensed the drugs as prescribed,

CVS did not breach Dr. Pittman’s asserted standard of care.

                                        10
      However, Dr. Pittman, under a section of the report specifically titled

“Standard of Care in Pharmacy Practice,” states,

      In this case, a reasonably prudent pharmacist would have:

      1.    Carefully examined the methotrexate prescription;

      2.    Input (or overseen a technician’s input) of accurate patient data
            into the computer;

      3.    Performed a Drug Utilization Review to ensure, among other
            requirements, that the correct dosage was being dispensed;

      4.    Noticed the overdose, called the physician and corrected the
            prescription[;] then

      5.    Dispensed the correct number and strength of the prescribed
            drug, properly labeled with the correct directions for use.

Thus, Dr. Pittman, in articulating the standard of care, did not rely solely on the

statutes and administrative rules that CVS alleges are “irrelevant” and “contrary.”

Rather, Dr. Pittman’s asserted standard of care—the expert’s opinion regarding the

“specific information about what the defendant should have done differently”—is

stated in the five steps quoted above. See Palacios, 46 S.W.3d at 880.

      CVS also argues that the standard of care is “plainly erroneous,” citing

Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d 455 (Tex. App.—Austin 2000, pet.

denied) and Simonson v. Keppard, 225 S.W.3d 868 (Tex. App.—Dallas 2007, no

pet.). In Morgan, the plaintiffs alleged that the staff of a Wal-Mart pharmacy had

negligently failed to warn its customers of the side effects of Despramine,

                                        11
proximately causing a patient’s death; a jury awarded the plaintiffs $674,500 in

damages. 30 S.W.3d at 460. Wal-Mart argued that its pharmacists had no duty, as

a matter of law, to “warn of the potential dangers of Despramine because that duty

rested with the prescribing physician.”        Id. at 460–61.   The Austin Court of

Appeals first noted that several courts from other jurisdictions had not recognized

such a duty where “the prescription is proper on its face and neither the physician

or the manufacturer has required that the pharmacist give the customer any

warning.” Id. at 461. The court held that “pharmacists have no generalized duty to

warn patients of potential adverse reactions to prescription drugs absent some

special circumstances.” Id. at 469.

      Here, unlike in Morgan, CVS appeals only the trial court’s order denying

their motion to dismiss under Chapter 74. A motion to dismiss under Chapter 74

seeks only to demonstrate that a claimant has not satisfied the procedural

requirements of the statute. Wissa v. Voosen, 243 S.W.3d 165, 169 (Tex. App.—

San Antonio 2007, pet. denied). And, under Chapter 74, a report need only

represent a “good faith effort” to comply with the definition of an expert report.

TEX. CIV. PRAC & REM. CODE ANN. § 74.351(l); Wissa, 243 S.W.3d 165 at 169–

70.8 While CVS may disagree with the standard of care asserted by Dr. Pittman,


8
      CVS argues that Wissa is distinguishable because it “addressed a disagreement
      about a precise standard of care within a particular profession.” They assert that
      Dr. Pittman’s expert report states the standard of care for a physician and not a
                                          12
we cannot say that his expert report does not represent a good faith effort to

provide his opinion regarding “what [CVS] should have done differently.” See

Palacios, 46 S.W.3d at 878; see also Woofter v. Benitez, No. 01-09-00161-CV,

2009 WL 3930839, at *7 (Tex. App.—Houston [1st Dist.] Nov. 19, 2009, no pet.)

(mem. op.).

      In Simonson, the court held that a doctor was not qualified to report on the

standard of care applicable to an advanced practice nurse because the doctor gave

no indication that he “had any familiarity with the standard of care for a nurse

practitioner.” 225 S.W.3d at 873–74. As CVS concedes, the court “did not decide

the case” on an alleged “articulation of a plainly erroneous standard of care,” but

rather held that the expert was not qualified to state a standard of care for that

particular profession. Id. Thus, Simonson cannot stand for the proposition that the

standard of care articulated by Dr. Pittman is plainly erroneous.

      Finally, CVS argues that Dr. Pittman’s “purported articulation of the

standard of care is so vague as to constitute no evidence” because he “fails to

describe what kind of training pharmacists actually receive, provide any

meaningful definition of ‘safety net’ and ‘errant,’ or describe how a reasonably


      pharmacist. However, in his expert report, Dr. Pittman, himself a physician,
      clearly identifies “the personnel of CVS/Caremark Pharmacy,” relies partially on
      statutes and administrative rules related to pharmacists, and asserts that the CVS
      pharmacist should have called the physician to correct the prescription. Thus, Dr.
      Pittman’s expert report clearly asserts a standard of care for a pharmacist, even if
      CVS disagrees about the scope of that standard of care.
                                           13
prudent pharmacist would have been trained to respond under the facts of this

case.” However, as stated above, Dr. Pittman articulated five precise steps that a

“reasonably prudent pharmacist” should have performed in the present case,

including noticing the overdose, contacting the prescribing physician, and then

correcting the prescription. And Dr. Pittman opined that the overdose consisted of

a dosage prescribed to be taken daily, which should have been “taken once a

week.” Moreover, he stated that the CVS pharmacist should have noticed the

overdose “during the final prescription filling step” because the Texas State Board

of Pharmacy Rules “require a pharmacist to perform the final label check.” We

conclude that this constitutes a “good faith effort” to sufficiently inform CVS of

Dr. Pittman’s opinions concerning “what care was expected, but not given.” See

Palacios, 46 S.W.3d at 880.

Breach

      CVS further argues that Dr. Pittman’s “unsupported conclusion that CVS

breached the standard of care is so cursory and divorced from the known facts in

this case that it constitutes no evidence at all.” Specifically, it asserts that Dr.

Pittman’s statement that 2.5 milligrams of Methotrexate to be taken daily

constitutes a “large overdose” is conclusory, he failed to inform CVS of the

conduct the Ballards have called into question, and he does not mention the

policies that CVS actually had in place for filling prescriptions.

                                          14
      In his expert report, Dr. Pittman defined a “typical” dosage of Metrotrexate

for treating Rheumatoid Arthritis as either:

      1.)    Single oral doses of 7.5 mg weekly.

      2.)    Divided oral doses of 2.5 mg at 12 hour intervals for 3 doses
             given as a course once weekly.

Dr. Pittman later asserted that,

      In the above referenced case the physician prescribed 90 methotrexate
      2.5 mg tablets to be taken one tablet by mouth every day. An
      appropriate dose would have been one 2.5 mg tablet (or perhaps 5 mg
      or 7.5 mg as referenced above) to be taken once a week . . . .

      It has been my observation that pharmacists typically discover a
      physician’s mistake during the prescription filling process, then call
      the physician and correct the error . . . . At any rate, the error should
      have been caught during the final prescription filling step by a
      pharmacist.

We conclude that Dr. Pittman provided a good faith summary of his opinion

concerning “the conduct the plaintiff has called into question,” namely, CVS’s

failure to recognize an overdose and failing to contact the prescribing prescription.

Although CVS argues that Dr. Pittman needed to provide more information

regarding his opinion on the “typical” dosage schedule for Methotrexate, Margaret

Ballard’s medical history,9 and the precise procedures in place at CVS, a Chapter


9
      CVS notes that Dr. Wilking’s report does address Margaret’s medical history.
      However, his report necessarily had to address Margaret’s medical history because
      it addressed the issue of causation, and he concluded that there was a “direct
      causal link between Mrs. Ballard’s death and the Methotrexate use.” And, in
      addition to an analysis of Margaret’s medical history, Dr. Wilking noted that a
                                         15
74 proceeding only addresses the requirements of the statute. Wissa, 243 S.W.3d

at 169. Again, to avoid dismissal in a Chapter 74 proceeding, a claimant need not

present evidence in the report as if it were actually litigating the merits. Palacios,

46 S.W.3d at 879.

“No Report”

      Finally, CVS argues that Dr. Pittman’s report constitutes “no report” for the

purposes of Chapter 74 because it does not “name, let alone distinguish between,

CVS Pharmacy, Inc., Caremark L.L.C., CVS RX Services, Inc., and Caremark

PHC, L.L.C.” and “fails to describe the conduct of any of these entities in a manner

that might shed some light into which entity’s conduct” it implicates. However, as

noted above, when a party’s alleged health care liability is purely vicarious, a

report that adequately implicates the actions of that party’s agents or employees is

sufficient. Gardner, 274 S.W.3d at 671–72. A report does not fail to implicate a

defendant’s conduct solely because the defendant is not identified in the report by

name. Troeger v. Myklebust, 274 S.W.3d 104, 110 (Tex. App.—Houston [1st

Dist.] 2008, pet. denied) (citing Ogletree v. Matthews, 262 S.W.3d 316, 321–22

(Tex. 2007)).




      “high dose [of] Methotrexate is not an appropriate therapy for treatment of . . . any
      chronic pain syndrome,” and he described the dosage prescribed to her as at a
      “toxic level.”
                                           16
      In support of its argument that Dr. Pittman’s report constitutes “no report” as

to the named defendants, CVS relies on Rivenes v. Holden, 257 S.W.3d 332, 340–

41 (Tex. App.—Houston [14th Dist.] 2008, pet. denied.). In Rivenes, the court

held that an expert report constituted no report as to a specific doctor where it did

not name the doctor and only implicated the negligence of other co-defendants and

“Hospital staff.” Id. at 338. Likewise, the other cases relied on by CVS hold

expert reports insufficient because they did not name the defendants or implicate

their conduct. See Bogar v. Esparza, 257 S.W.3d 354, 364 (Tex. App.—Austin

2008, no pet.) (holding that report failed to identify defendant doctor or ascribe

standard of care as to him); Apodaca v. Russo, 228 S.W.3d 252, 255–58 (Tex.

App.—Austin 2007, no pet.) (holding that expert report did not implicate

defendant because it referred only to other health care providers); Garcia v.

Marichalar, 198 S.W.4d 250, 252 (Tex. App.—San Antonio 2006, no pet.)

(“[T]hat report, which focused on the acts committed by other defendants, did not

mention [the defendant] at all.”) (emphasis added).

      Here, however, Dr. Pittman’s expert report implicates CVS as being

vicariously liable for the negligence of their employees. CVS asserts that the

Ballards pleaded only direct liability claims. However, in their original petition,

the Ballards assert that:

      Defendants, CVS PHARMACY, were negligent in one or more of the
      following particulars.
                                         17
              a.   By failing to recognize and correct a dangerous drug
                   overdose.

              b.   In failing to fill the prescription in compliance with
                   Texas Pharmacy Practice Standards.

Although the Ballards did not use the words “vicarious liability,” the test for

determining if a petition provides fair notice of a claim is whether the opposing

party can ascertain from the pleading the nature and basic issues of the

controversy. Southwest Gen. Hosp., L.P. v. Gomez, 357 S.W.3d 109, 112 (Tex.

App.—San Antonio 2011, no pet.) (citing Horizon/CMS Healthcare Corp. v. Auld,

34 S.W.3d 887, 896 (Tex. 2000)). Petitions are construed liberally and in favor of

the drafter if no special exceptions have been sustained to that petition. Id. Here,

the language used by the Ballards in their petition implicates CVS as being

vicariously liable for the failure of its employees to “recognize and correct a

dangerous drug overdose” and “fill the prescription in compliance with Texas

Pharmacy Practice Standards.”     And it is undisputed that each of the named

defendants are connected to CVS Pharmacy or the parent corporate entity of CVS

Pharmacy. Accordingly, we hold that the trial court did not err in concluding that

the Ballards’ medical expert report is sufficient and not dismissing their health

liability claim.




                                        18
                                    Conclusion

      We affirm the order of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Higley, and Sharp.




                                         19
