                                                                                           ACCEPTED
                                                                                      05-14-00202-CV
                                                                            FIFTH COURT OF APPEALS
                                                                                      DALLAS, TEXAS
                                                                                2/26/2015 10:32:58 PM
                                                                                           LISA MATZ
                                                                                               CLERK

                               05-14-00202-CV

                                IN THE                               FILED IN
                                                              5th COURT OF APPEALS
                         COURT OF APPEALS                          DALLAS, TEXAS
                   FOR THE FIFTH DISTRICT OF TEXAS            2/26/2015 10:32:58 PM
                           DALLAS, TEXAS                             LISA MATZ
                                                                       Clerk

           _______________________________________________

    MILLBOOK HEALTHCARE AND REHABILITATION CENTER,
                                Defendant & Appellant,

                                       vs.

   SHAUNDRA EDWARDS, on Behalf of the Estate of Georgia Cullens,
                                      Plaintiff & Appellee.

           _______________________________________________

  On Accelerated Interlocutory Appeal from the 14th Judicial District Court for
                             Dallas County, Texas
                    Trial Court Cause No. DC- 13-07856-A

__________________________________________________________________

                APPELLEE’S MOTION FOR REHEARING

__________________________________________________________________

                                             Julius S. Staev
                                             Texas Bar No. 00792855
                                             jstaev@staevlaw.com
                                             Brian R. Arnold
                                             Texas Bar No. 01340195
                                             arnoldenda@aol.com
                                             2101 Cedar Springs Rd., Ste. 1050
                                             Dallas, Texas 75201
                                             Tel: (214) 347-0569
                                             Fax: (214) 279-5674

                                             Counsel for Appellee
                                          TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................... ii

INDEX OF AUTHORITIES .................................................................................. iii

ARGUMENTS AND AUTHORITIES .................................................................                              1

         ATTORNEY’S FEES AND COSTS ARE NOT AVAILABLE
         TO APPELLANT AS TIMELY REPORT WAS SERVED ........................ 1

                   Appellee’s Amended Expert Report represented
                   a good faith effort to comply with the definition
                   of an expert report under minimal standards suggested
                   by the Supreme Court in Scoresby v. Santillan ............................... 1


PRAYER ...............................................................................................................   4

CERTIFICATE OF SERVICE ............................................................................                      5

CERTIFICATE OF COMPLIANCE ....................................................................                           5




                                                            -ii-
                                INDEX OF AUTHORITIES


CASES:

Scoresby v. Santillan,
      346 S.W.3d 546, 54 Tex. Sup. Ct. J. 1413 (Tex., 2011) ) . . . . . . . . . . -2-, -3-



TEXAS CONSTITUTION, STATUTES AND RULES:

Tex. Civ. Prac. & Rem. Code § 74.351(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-




                                                -iii-
                      ARGUMENTS AND AUTHORITIES


      Appellee requests that the Court reconsider its decision and opinion holding

that the expert report filed by Plaintiff “did not represent an objective good faith

effort to comply with the definition of an expert report” and therefore constituted

“no report,” even though timely served, such that Appellants should be awarded

mandatory attorney’s fees.



      It its opinion the Court reaches this conclusion because the report “ was

made by a person not qualified to testify regarding the standard of care.” See

Court’s Opinion, Page 6. Therefore, the Court also concluded, that Appellant

should be entitled to a mandatory award of attorney’s fees as per Tex. Civ. Prac.

& Rem. Code § 74.351(b), and remanded the case to the trial court for further

evidentiary findings on the attorney fees issue.



      Under the statute, mandatory attorney’s fees are appropriate if no report at

all is filed within 120 days or if the report filed does not constitute an objective

good faith effort to comply with the statute.



      Appellee’s respectfully requests that the Court reconsider this conclusion in

light of the Supreme Court’s opinion in Scoresby v. Santillan. In the Scoresby

                                           -1-
case, the Supreme Court appears to ease the definition of what constitutes an

objective good faith effort to comply with the statute. The court stated:



            “Based on the Act's text and stated purposes, we hold that a
      document qualifies as an expert report if it contains a statement of
      opinion by an individual with expertise indicating that the claim
      asserted by the plaintiff against the defendant has merit.”

      “This lenient standard avoids the expense and delay of multiple
      interlocutory appeals and assures a claimant a fair opportunity to
      demonstrate that his claim is not frivolous.”


      Scoresby v. Santillan, 346 S.W.3d 546, 54 Tex. Sup. Ct. J. 1413 (Tex.,

2011).



      The Supreme Court’s opinion in Scoresby seems to impart greater discretion

to the trial court to determine if a report meets the minimum standard for a report

and if such report constitutes an objective good faith effort to comply.



      In light of the Scoresby opinion, this Court’s decision that Dr. Arauco’s

expert was so devoid and deficient, based on his lack of qualifications alone, as to

not even constitute a good faith effort to comply, is an extraordinarily strict

application of the statute and results in a harsh application of the law. Under the

minimum standards discussed in by the Supreme Court in Scoresby, this Court’s


                                          -2-
decision arguably creates an unjust outcome as to Plaintiff, by requiring her to pay

attorney’s fees. Plaintiff made a seeming good faith effort to file a report on time

and to then amend the report to further attempt to comply with requirements of the

statute. Such manifest efforts should not lead to an award of attorney’s against the

Plaintiff – a result seeming intended to punish truly frivolous law suits.



       The abuse of discretion standard requires action by the trial court that is

arbitrary and unreasonable and without reference to any guiding rules or principles.

This Court’s opinion that the Trial Judge not only abused his discretion in finding

that the expert report meets the minimal standard for the case to proceed, but that

the expert report did not even constitute an objective good faith effort to comply, is

an over application of the rule and creates an unjust result.



       As discussed in Appellee’s Brief, this case involved a simple broken leg

injury and a simple analysis of a health care facility’s duty to protect patients from

common injuries (such a being dropped by staff). These facts are important, in that

they are overriding and provide a reasonable basis for the Trial Judge’s decision.

This Court’s decision unduly strips the trial judge of discretion provided to him by

the statute.




                                          -3-
                                    PRAYER



      For these reasons, Appellee requests that this court reconsider its opinion

and issue a revised opinion according to the arguments above, reversing the Trial

Judge’s order denying Appellant’s Motion to Dismiss, but NOT remand for any

further proceedings.




                                              Respectfully submitted,

Date: February 26, 2015                       /s/ Julius S. Staev
                                              _________________________
                                              Julius S. Staev
                                              Texas Bar No. 00792855
                                              jstaev@staevlaw.com
                                              Brian R. Arnold
                                              Texas Bar No. 01340195
                                              arnoldenda@aol.com
                                              2101 Cedar Springs Rd., Ste. 1050
                                              Dallas, Texas 75201
                                              Tel: (214) 347-0569
                                              Fax: (214) 279-5674

                                              Counsel for Appellee




                                        -4-
                         CERTIFICATE OF SERVICE

       This certifies that the undersigned served Appellee’s Motion for Rehearing,
by sending it to counsel for Appellant, Bryan Rutherford, Esq., MacDonald Devin,
P.C., 1201 Elm Street, Ste. 3800, Dallas, Texas 75270, by Email service through
the eFileTexas Electronic Filing System, on February 26, 2015.

                                               /s/ Julius S. Staev
                                               ______________________________
                                               Julius S. Staev

                                               Counsel for Appellee




            CERTIFICATE OF COMPLIANCE WITH RULE 9.4

       This brief complies with the typeface requirements of Tex. R. of App. Proc.
R. 9.4 because the brief has been prepared and is printed in the conventional
typeface of Time New Roman no smaller that 14 point style, except for footnotes,
which are in 12 point style.

       This brief also complies with the length requirements of Tex. R. of App.
Proc. R. 9.4 because this brief contains less than 4,700 words, excluding parts of
the brief that are exempted.

       The undersigned understands that a material misrepresentation in this
certificate or circumvention of the types style or length limits of Tex. R. of App.
Proc. R. 9.4 may result in the Court’s striking the brief and imposing sanctions
against the person signing the brief.

      This brief was filed electronically with the Court with an electronic copy
being sent to Appellants’ counsel.


                                               /s/ Julius S. Staev
                                               Julius S. Staev

                                               Counsel for Appellee

                                         -5-
