                                                                                        ACCEPTED
                                                                                   05-14-01342-CV
                                                                         FIFTH COURT OF APPEALS
                                                                                   DALLAS, TEXAS
                                                                              4/6/2015 11:59:04 PM
                                                                                        LISA MATZ
                                                                                            CLERK

                              NO. 05-14-01342-CV

                                                              FILED IN
                   IN THE COURT OF APPEALS     5th COURT OF APPEALS
                                                   DALLAS, TEXAS
       FOR THE FIFTH COURT OF APPEALS DISTRICT OF TEXAS
                                               4/6/2015 11:59:04 PM
                          AT DALLAS                  LISA MATZ
                                                               Clerk


                BAYLOR UNIVERSITY MEDICAL CENTER,

                                                 Appellant,
                                      v.

                              MARY GREESON,

                                            Appellee.
________________________________________________________________________

          From the 44th Judicial District Court of Dallas County, Texas
                    The Honorable Carlos Cortez, Presiding
                         Trial Court No. DC-13-07506
______________________________________________________________________

                 MARY GREESON’S APPELLEE’S BRIEF
______________________________________________________________________


     William J. Dunleavy
     Texas Bar No. 00787404

     Law Offices of William J. Dunleavy, P.C.
     825 Market Street
     Building M, Suite 250
     Allen, Texas 75013
     Telephone: (972) 247-9200
     Facsimile: (972) 247-9201
     Email: bill@williamjdunleavy.com

     Attorney for Appellee Mary Greeson


     ORAL ARGUMENT REQUESTED

                                 April 6, 2015
                          STATEMENT REGARDING ORAL ARGUMENT

          Mary Greeson believes the Court’s decisional process would be aided by oral

argument because the fact scenario in this case is unusual and counsel for Appellee has not

identified any case involving an arbitration agreement that was modified by Rule 11

Agreement, as is the situation here.




Mary Greeson’s Appellee’s Brief                                                       Page ii
GREESONAPELLEEBRIEF.wpd
                                                TABLE OF CONTENTS

Statement Regarding Oral Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Arguments and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.        Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.       Arguments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

          A.         Court Lacks Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

          B.         Baylor Failed to Preserve Any Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

                     1.        Appellant Made No Objection in the Trial Court.. . . . . . . . . . . . . . 10

                     2.        Appellant Raises No Proper Issue on Appeal.. . . . . . . . . . . . . . . . . 12

          C.         Trial Court Correctly Found An Agreement to Defer Arbitration.. . . . . . . 14

          D.         Trial Court Correctly Found No Breach and No Material Breach. . . . . . . 15

          E.         Appellant is Not Entitled to Attorney’s Fees.. . . . . . . . . . . . . . . . . . . . . . . 17

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Filing and Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21




Mary Greeson’s Appellee’s Brief                                                                                                   Page iii
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                                           INDEX OF AUTHORITIES

Cases                                                                                                                     Page

Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc.,
       347 S.W.3d 897 (Tex.App.–Dallas, 2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . 8

Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . 9

Celmer v. McGarry, 412 S.W.3d 691 (Tex.App.–Dallas 2013, pet. denied).. . . . . . . . . . . 9

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). . . . . . . . . . . . . . . . . . . . . . . . . 6, 15

Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex. 2000). . . . . . . . . . . . . 16

McKinney v. National Union Fire Insurance of Pittsburgh, Pennsylvania,
     772 S.W.2d 72 (Tex. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Nutt v. Members Mut. Ins. Co., 474 S.W.2d 575
       (Tex.App.–Dallas 1971, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Vingcard A.S. v. Merrimac Hospitality Sys., 59 S.W.3d 847
      (Tex.App.–Fort Worth 2001, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278 (Tex. 1999). . . . . . . . . . . . . . . . . . 10

Statutes and Rules:                                                                                                       Page

9 U.S.C. § 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 19

TEX. CIV. PRAC. & REM. CODE § 38.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

TEX. CIV. PRAC. & REM. CODE § 38.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18, 19

TEX. CIV. PRAC. & REM. CODE § 51.016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 18

TEX. R. APP. P. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 14, 18, 20

TEX. R. APP. P. 38.1(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14

TEX. R. APP. P. 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




Mary Greeson’s Appellee’s Brief                                                                                           Page iv
GREESONAPELLEEBRIEF.wpd
                                    STATEMENT OF FACTS

          The statement of facts in Appellant’s Brief is inadequate as it omits the evidentiary

admissions by Appellant Baylor University Medical Center (“Baylor”) the Trial Court relied

upon to find Mary Greeson and Baylor agreed to conduct limited discovery and mediate the

case before arbitration. Appellant argued below, and argues on appeal, that its Occupational

Injury Benefit Plan required the Trial Court to order the case to arbitration. CR P177 and

Appellant’s Brief P8 The Occupational Injury Benefit Plan has an arbitration provision. CR

P44-107 The arbitration provision also includes the statement: “All claims or disputes

described below that cannot otherwise be resolved between Baylor and you are subject to

final and binding arbitration.” CR P88

          To respond to Appellant’s arbitration argument, Mary Greeson showed the Trial Court

that the parties’ Rule 11 Agreement deferred arbitration until after limited discovery and after

the parties conducted mediation to try to settle the dispute. CR P110-1131 Among other

things, the original Rule 11 Agreement provided the following:

          3.        The lawsuit should be abated pending a possible agreed resolution of the
                    arbitration issue and while the parties seek to resolve the dispute through
                    mediation;

          4.        Deadlines in the case will be abated ...

          5.        Limited discovery will be accomplished during the abatement, including:

                    a.    paper discovery of interrogatories, requests for production,
                    requests for admissions and/or requests for disclosure as allowed under

          1
        Throughout this Brief unless otherwise stated, Greeson’s references to the parties’ Rule
11 Agreement include the original Rule 11 Agreement of November 15, 2013 and the amended
Rule 11 Agreement of February 10, 2014.
Mary Greeson’s Appellee’s Brief                                                             Page 1
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                    the Texas Rules of Civil Procedure to be completed by December 31,
                    2013;

                    b.    certain depositions, which may include a representative of
                    Defendant, Juanita Fuentes who is a nurse aid, Dorothy Douglas who is
                    a nurse manager and Mary Greeson to be completed by January 31, 2014;
                    and

                    c.    the parties may agree to further discovery and/or to extend the
                    deadlines to complete such discovery.

          6.        The parties will mediate this case with Mark Gilbert no later than
                    February 28, 2014. ....2

The parties later extended certain deadlines in their amended Rule 11 Agreement.3 Appellant

admitted that Mary Greeson was and is entitled to discovery by the parties’ Rule 11

Agreement. RR P19, L8-9 But all of the discovery that was agreed upon has not been

completed. RR P11, L16-22 And the parties have not been to mediation. RR P10, L16-18

          Mary Greeson did not submit copies of her discovery responses when she responded

to Baylor’s motions heard by the Associate Judge. CR P146-150 Consistent with TEX.

GOV’T CODE § 54.510(e), Greeson also did not offer her discovery responses when she

appealed the Associate Judge’s rulings. CR P161-171 But the Trial Court heard and had the

opportunity to consider evidence that Greeson complied with the requirements of the parties’

Rule 11 Agreement with the binding admissions made by Appellant’s counsel at the October

3, 2014 hearing. RR P17, L7-11 and RR P17, L18-25

          In the Trial Court, and on appeal, Appellant repeatedly argues that Greeson wholly

failed to satisfy her discovery obligations under the parties’ Rule 11 Agreement. CR P107,
          2
              CR P110-111.
          3
              CR P112-113.
Mary Greeson’s Appellee’s Brief                                                        Page 2
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CR P184 and Appellant’s Brief P12-14 The entire record shows the inaccuracy of this

claim however. CR P1-223 On January 22, 2014, Greeson served her discovery responses.

CR P27 The discovery was sent by letter to Appellant’s counsel that explained Mary

Greeson’s “family situation has been hectic and she had another surgery on December 19,

2013. This was unexpected and hindered our ability to respond to discovery.” CR P27

Documents responsive to Appellant’s discovery requests were also served. CR P27

           Appellant argued in the Trial Court that the Rule 11 Agreement did not require

certain depositions that were not completed. RR P10, L1-7 Appellant also argued that

Greeson never offered Appellant dates for Greeson’s own deposition. RR P10, L25 to P11,

L1 But the record shows these claims are incorrect. The Rule 11 Agreement provided for

depositions, including “a representative of Defendant, Juanita Fuentes who is a nurse aid,

[and] Dorothy Douglas who is a nurse manager and Mary Greeson ...”. CR P110-113

Greeson also offered two weeks in January and February 2014 when the depositions could

be completed. CR P27

          Appellant argued below “there’s not a shred of evidence from Plaintiff of any

shortcomings by Baylor in the discovery process.” RR P11, L10-11 But Appellant admitted

it never produced its employees and representatives for deposition, contrary to the Rule 11

Agreement. RR P11, L16-20 Appellant argued this failure to produce witnesses was

appropriate because it did not have Mary Greeson’s medical records that it needed. RR P11,

L18-25 But the Rule 11 Agreement did not permit, nor require, the delay of depositions until

after Appellant obtained Mary Greeson’s medical records. CR P110-113 More importantly,

Mary Greeson’s Appellee’s Brief                                                        Page 3
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after repeatedly arguing that Greeson had failed to meet her discovery obligations at the

hearing on October 3, 2014, Appellant eventually admitted that Greeson had produced the

medical records and medical bills in her possession, although she had few records. RR P17,

L7-114              Appellant also eventually admitted it had all of Mary Greeson’s medical

records from her treatment at Baylor University Medical Center and her records of treatment

by Baylor doctors. RR P17, L18-255

          With all of its arguments about discovery, and whether or not Mary Greeson satisfied

her discovery obligations, the real crux of Appellant’s argument below was that Greeson

materially breached the Rule 11 Agreement. CR P178 and RR P11, L7 The Trial Court

considered this breach of contract argument when it heard Mary Greeson’s appeal of the

Associate Judge’s ruling and correctly rejected the argument based on evidence from

Appellant itself that Greeson had satisfied her discovery obligations. CR P212 Appellant

also argued the Rule 11 Agreement was not an agreement to defer arbitration. CR P177-178

But the plain language of the Rule 11 Agreement, and the parties’ subsequent conduct,

provided ample evidence for the Trial Court to also reject this argument. CR P110-113

          4
       MR. DUNLEAVY: ... We've given them all the medical -- and I told Judge Purdy this.
We've given them all the medical records and all the medical bills that Mary Greeson has.

          MS. ACKELS: Which is almost nothing.

          MR. DUNLEAVY: Which is almost nothing.

          5
        MS. ACKELS: I have one caveat to that, Your Honor, which is Plaintiff's counsel is
absolutely correct, that when Ms. Greeson sustained the alleged work injury at Baylor Hospital,
she was subsequently treated by Baylor Hospital physicians. And Plaintiff's counsel is correct
that we have those records, and the Baylor doctors decided that it was a preexisting condition.
(emphasis added).
Mary Greeson’s Appellee’s Brief                                                             Page 4
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          Following entry of the Trial Court’s Order, Appellant filed its Notice of Appeal on

October 13, 2014. CR P213-214 Appellant also filed a Request for Preparation of Clerk’s

Record on October 17, 2014. CR P215-217 But Appellant did not file any objection to the

Court’s ruling, nor did Appellant file any motion for reconsideration, after the Trial Court

entered the October 3, 2014 Order. CR P1-223

          Appellant never requested a ruling from the Trial Court that its Occupational Injury

Benefit Plan required the dispute to be arbitrated. CR P1-223 Appellant never objected to

the Trial Court’s failure to rule that the Occupational Injury Benefit Plan required arbitration.

CR P1-223 Appellant never requested a ruling from the Trial Court that Mary Greeson

breached, or materially breached, the parties’ Rule 11 Agreement. CR P1-223 Appellant

never objected to the Trial Court’s failure to rule that Mary Greeson breached, or materially

breached, the parties’ Rule 11 Agreement. CR P1-223 Appellant presented no evidence that

it made a demand for attorney’s fees as required by TEX. CIV. PRAC. & REM. CODE § 38.002.

CR P1-223 Appellant never requested a ruling from the Trial Court that it was entitled to

attorney’s fees. CR P1-223 Appellant never objected to the Trial Court’s failure to rule that

it was entitled to attorney’s fees. CR P1-223

                                  SUMMARY OF THE ARGUMENTS

          This Court lacks jurisdiction to hear this appeal because the Trial Court did not deny

Baylor’s request to send the dispute to arbitration. The order complained of is not “hostile

to arbitration” and no basis for this appeal is found in TEX. CIV. PRAC. & REM. CODE §

51.016, nor in 9 U.S.C. § 16. The Trial Court correctly ruled that the parties agreed to defer

Mary Greeson’s Appellee’s Brief                                                            Page 5
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arbitration until after completing certain limited discovery and after completing a mediation

to attempt to resolve the parties’ dispute. The Trial Court was also correct to determine that

Mary Greeson did not breach the parties’ agreement that deferred arbitration in order to

conduct discovery and to mediate the dispute.

          Appellant failed to preserve any error in this appeal because its only two issues on

appeal do not challenge the Trial Court’s October 3, 2014 Order that Appellant appeals.

Additionally, Appellant never sought a ruling from the Trial Court that Mary Greeson was

required to arbitrate the dispute; Appellant never sought a ruling from the Trial Court that

Greeson breached or materially breached the Rule 11 Agreement; and Appellant never sought

a ruling on its request for attorney’s fees, nor did Appellant prove its entitlement to attorney’s

fees. Similarly, Appellant never objected to the Trial Court failure or refusal to make the

rulings Appellant now insists it was entitled to.

                                  ARGUMENTS AND AUTHORITIES

I.        Standard of Review

          Baylor correctly stated the standard of review for questions of law as a de novo

review. But no questions of law are at issue in this appeal. Instead, the appropriate standard

of review in this case is a sufficiency of evidence review.6 And the proper issues for the

Court to consider are 1) whether any evidence supports the Trial Court’s judgment that the

parties agreed to defer arbitration; and 2) whether any evidence supports the Trial Court’s

judgment that Mary Greeson did not breach, or did not materially breach, the parties’ Rule


          6
              City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005).
Mary Greeson’s Appellee’s Brief                                                             Page 6
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11 Agreement to defer arbitration, conduct discovery and mediate the dispute.

II.       Arguments

A.        Court Lacks Jurisdiction

          This Court lacks jurisdiction to hear this interlocutory appeal because no statute

confers jurisdiction and the Trial Court entered no order “hostile to arbitration”, contrary to

Appellant’s claims. Baylor cited TEX. CIV. PRAC. & REM. CODE § 51.016 in its Notice of

Appeal as the jurisdictional basis for this interlocutory appeal.7 But Section 51.016 only

allows interlocutory appeals if the appeal would be permitted by the FEDERAL ARBITRATION

ACT.8 Specifically, TEX. CIV. PRAC. & REM. CODE § 51.016 states as follows:

          Sec. 51.016. APPEAL ARISING UNDER FEDERAL ARBITRATION
          ACT. In a matter subject to the Federal Arbitration Act (9 U.S.C. Section
          1 et seq.), a person may take an appeal or writ of error to the court of
          appeals from the judgment or interlocutory order of a district court,
          county court at law, or county court under the same circumstances that
          an appeal from a federal district court's order or decision would be
          permitted by 9 U.S.C. Section 16.

This Court has said interlocutory appeals under the FEDERAL ARBITRATION ACT are limited

to the situations listed in the FEDERAL ARBITRATION ACT, which states, in part, as follows:

          a) An appeal may be taken from—

          (1) an order—
          (A) refusing a stay of any action under section 3 of this title,
          (B) denying a petition under section 4 of this title to order arbitration to proceed,
          (C) denying an application under section 206 of this title to compel arbitration,
          (D) confirming or denying confirmation of an award or partial award, or
          (E) modifying, correcting, or vacating an award;


          7
              CR P213.
          8
              TEX. CIV. PRAC. & REM. CODE § 51.016.
Mary Greeson’s Appellee’s Brief                                                           Page 7
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          (2) an interlocutory order granting, continuing, or modifying an injunction
          against an arbitration that is subject to this title; or

          (3) a final decision with respect to an arbitration that is subject to this title.9

Similarly, this Court has also stated when interlocutory appeals are not permitted under the

FEDERAL ARBITRATION ACT, which provides in part, as follows:

          (b) Except as otherwise provided in section 1292 (b) of title 28, an appeal may
          not be taken from an interlocutory order—

                     (1) granting a stay of any action under section 3 of this title;
                     (2) directing arbitration to proceed under section 4 of this title;
                     (3) compelling arbitration under section 206 of this title; or
                     (4) refusing to enjoin an arbitration that is subject to this title.10

None of the circumstances described in 9 U.S.C. § 16 apply here. As a result, TEX. CIV.

PRAC. & REM. CODE § 51.016 also does not apply and this Court lacks jurisdiction to hear

this interlocutory appeal.

          Contrary to Appellant’s arguments, the Trial Court did not deny a request to send this

dispute to arbitration.11 Rather, the Trial Court accepted the parties’ intent, expressed in their

Rule 11 Agreement, to attempt to resolve the dispute before any arbitration by conducting

limited discovery and then mediating the dispute with a mediator chosen by the parties.12

Appellant now asks this Court to ignore the plain language and the clear intent of the Rule

11 Agreement to defer arbitration. Greeson shows the Trial Court gave effect to the parties’


          9
       Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc., 347 S.W.3d 897, 900
(Tex.App.–Dallas, 2011, pet. denied) (citing 9 U.S.C. § 16).
          10
               Id.
          11
               CR P212.
          12
               Id.; and CR P110-113.
Mary Greeson’s Appellee’s Brief                                                               Page 8
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intent and this Court should do the same.

          Whether or not Mary Greeson agreed to arbitrate this dispute, she clearly agreed to

delay arbitration until after the completion of discovery and mediation.13 While Appellant

disputes the effect of the Rule 11 Agreement it entered into, Appellant cannot dispute the

plain language of the arbitration provision in its Occupational Injury Benefit Plan that also

requires the effort to resolve disputes before arbitration.14

          In the Trial Court, Appelant noted that “Texas and Federal public policy strongly

favor the submission of disputes to arbitration.”15 But even the cases cited by Appellant

show the public policy favoring arbitration is based on a parties’ right to agree to arbitrate.16

In fact, the Cantella opinion cited by Baylor notes an agreement to arbitrate is a fundamental

element that must be established before a court may order arbitration.17 While Greeson does

not concede the Occupational Injury Benefit Plan includes an enforceable agreement to

arbitrate, Greeson notes Appellant’s contention that the Occupational Injury Benefit Plan is

an enforceable agreement requiring arbitration.18 Appellant also recognized that agreements

to arbitrate are evaluated under general principles of contract law.19 And as a contract, the

Occupational Injury Benefit Plan could be modified, or clarified by a meeting of the minds.20

          13
               CR P110-113.
          14
               CR P88.
          15
               CR P34.
          16
               Id. (citing Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996)).
          17
               Id.
          18
               Appellant’s Brief, P18.
          19
               Id.
          20
               Celmer v. McGarry, 412 S.W.3d 691, 702 (Tex.App.–Dallas 2013, pet. denied).
Mary Greeson’s Appellee’s Brief                                                                 Page 9
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          The evidence considered by the Trial Court supported the finding that the parties

amended any agreement to arbitrate by their Rule 11 Agreement. CR P110-113 As such,

it is clear the Trial Court did not deny any request to arbitrate, nor did the Trial Court even

delay arbitration by court action. Rather, the Trial Court order makes clear the lawsuit “will

remain abated, until the specific limited discovery set out in the parties’ Rule 11 Agreement

is completed”.21 Thus the delay of arbitration was accomplished by the parties’ joint decision

to complete discovery and mediation before moving to arbitration, which is clearly evidenced

by the Rule 11 Agreement.22 As the Rule 11 Agreement was entered into by counsel for two

parties in a lawsuit, the Trial Court properly determined the effect of the Rule 11 Agreement.

          Mary Greeson shows the same principle that underlies public policies favoring

arbitration – a party’s right to contract – were the basis for the Trial Court’s correct decision

to abate this case. The parties here expressly agreed to defer arbitration in order to conduct

discovery and mediation. This Court should reinforce the Trial Court’s acceptance of the

parties’ agreement to delay arbitration by dismissing this appeal for lack of jurisdiction as

there is no final order, nor even an interlocutory order denying arbitration in this case.

B.        Baylor Failed to Preserve Any Error

          1.        Appellant Made No Objection in the Trial Court

          To preserve a complaint for review on appeal, a party must present to the trial court

a timely request, motion, or objection that states the specific grounds for the ruling requested



          21
               CR 212.
          22
               CR P110-113.
Mary Greeson’s Appellee’s Brief                                                            Page 10
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that conforms to the requirements of the rules of procedure and rules of evidence.23 A

specific objection is one which enables the trial court to understand the precise grounds so

as to make an informed ruling, affording the offering party an opportunity to remedy the

defect, if possible.24 An appellant must also show the trial court ruled on the request,

objection, or motion “either expressly or impliedly”, or that the trial court “refused to rule”

and the appellant “objected to the refusal” to rule.25 Appellant here failed to satisfy either

of these requirements in the Trial Court to complain of the Order granting Mary Greeson’s

appeals of the decisions by the Associate Judge.

          After the Trial Court vacated the rulings of the Associate Judge, Appellant filed its

Notice of Appeal on October 13, 201426, and its Request for Preparation of the Clerk’s

Record on October 17, 2014.27 Appellant filed no objection to the Trial Court’s ruling,

Appellant filed no motion for reconsideration and Appellant never submitted any pleading

or argument to state the specific grounds for the rulings Appellant requested from the Trial

Court after the entry of the October 3, 2014 Order.28

          Appellant never requested a ruling from the Trial Court that its Occupational Injury

Benefit Plan required the dispute to be arbitrated, nor did Appellant object to the Trial


          23
         Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999); and TEX. R. APP.
P. 33.1(a)(1)(A)-(B).
          24
         McKinney v. National Union Fire Insurance of Pittsburgh, Pennsylvania, 772 S.W.2d
72, 74 (Tex. 1989) (interpreting TEX. R. APP. P. 52, the predecessor to TEX. R. APP. P. 33.1).
          25
               TEX. R. APP. P. 33.1(a)(2)(A).
          26
               CR P213-214.
          27
               CR P215-217.
          28
               CR P1-223.
Mary Greeson’s Appellee’s Brief                                                           Page 11
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Court’s failure or refusal to rule.29 Appellant never requested a ruling from the Trial Court

that Mary Greeson breached, or materially breached, the parties’ Rule 11 Agreement, nor did

Appellant object to the Trial Court’s failure or refusal to so rule.30 Appellant presented no

evidence in the Trial Court of any demand for attorney’s fees as required by TEX. CIV. PRAC.

& REM. CODE § 38.002, Appellant never obtained any ruling from the Trial Court on its

request for attorney’s fees, and Appellant never objected to the Trial Court’s failure or

refusal to rule on its request for attorney’s fees.31 As such, Appellant cannot bring to this

Court its request for an award of attorney’s fees, given its failure to preserve error on the

issue of attorney’s fees.

          2.         Appellant Raises No Proper Issue on Appeal

          A party complaining on appeal must state concisely in its brief “all issues or points

presented for review.”32 Appellant here failed to satisfy this requirement in TEX. R. APP. P.

38.1(f) because neither of its issues in this appeal challenge any ruling by the Trial Court.

Appellant’s two issues in this appeal are stated as follows:

          1.      Did Greeson agree to arbitrate claims relating to her alleged
          on-the-job injury when she signed an Arbitration Agreement that covers
          all claims “relating to an on-the-job injury”?33

          2.     Where the parties have agreed to abate the case, in the hopes of
          resolving the dispute through mediation—and where they’ve agreed the
          case “will remain abated until a Motion to Re-Open is filed by one of the

          29
               Id.
          30
               Id.
          31
               Id.
          32
               TEX. R. APP. P. 38.1(f).
          33
               Appellant’s Brief, P7.
Mary Greeson’s Appellee’s Brief                                                          Page 12
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          parties”—can Baylor move to reopen the case and to compel arbitration
          when Greeson refuses to comply with the plan for mediation?34

Appellant’s first issue regarding whether Mary Greeson agreed to arbitrate is irrelevant to

the Trial Court’s Order that is complained of. At the hearing, Greeson advised the Trial

Court that it was unnecessary to address the issue of enforceability of the arbitration

provision in Baylor’s Occupational Injury Benefit Plan.35 And the Trial Court’s Order of

October 3, 2014 does not address that issue.36 Instead, the Trial Court’s Order vacating the

Associate Judge’s rulings is premised on the Trial Court’s factual determination that Mary

Greeson and Baylor agreed to defer arbitration to conduct discovery and mediation, as well

as the additional factual determination that Greeson did not breach, or did not materially

breach, the parties’ Rule 11 Agreement. Because this issue is not any challenge, nor any

objection, to the Trial Court’s ruling, Appellant failed to preserve error by failing to “state

concisely all issues or points presented for review” as required by TEX. R. APP. P. 38.1(f).

          In its second issue, Appellant complains about whether it can “move to reopen the

case and to compel arbitration when Greeson refuses to comply with the plan for

mediation”.37 In raising this issue, Appellant again fails to make any complaint about a

ruling by the Trial Court. This is because the Trial Court correctly found Mary Greeson had

not breached, or had not materially breached, the parties’ Rule 11 Agreement. Greeson

details more fully below the propriety of the Trial Court’s correct finding that there was no

          34
               Id.
          35
               RR P13, L16-19.
          36
               CR P212.
          37
               Appellant’s Brief, P7.
Mary Greeson’s Appellee’s Brief                                                          Page 13
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breach of the Rule 11 Agreement. In noting Appellant’s failure to state concisely this issue

presented for review, Greeson shows this issue merely assumes that Greeson “refuses to

comply with the plan for mediation”, but the Trial Court determined that Greeson did not

breach the Rule 11 Agreement and Appellant does not by either of its issues challenge that

correct finding. Accordingly, as Appellant’s second issue is not any challenge, nor any

objection, to the Trial Court’s ruling, Appellant fails to preserve error as required by TEX. R.

APP. P. 33.1 and TEX. R. APP. P. 38.1(f).

C.        Trial Court Correctly Found An Agreement to Defer Arbitration

          The evidence considered by the Trial Court supports the finding that the parties agreed

to defer arbitration. Appellant argues in error that no such agreement exists. But it is clear

from the parties’ Rule 11 Agreement that Appellant and Greeson agreed to conduct discovery

and and they agreed to mediate their dispute before any arbitration.38 Despite this clear

evidence of agreement, Appellant argues there was no agreement to defer arbitration until

after limited discovery was conducted and after mediation.39 Appellant is wrong.

          While Appellant disputes the effect of the Rule 11 Agreement, it cannot dispute that

its Occupational Injury Benefit Plan requires arbitration only for disputes “that cannot

otherwise be resolved between Baylor and you.40 The Trial Court considered the parties Rule

11 Agreement; it considered Appellant’s expressed desire to obtain discovery41; and the Trial


          38
               Rule 11 Agreement, CR P110-113.
          39
               Appellant’s Brief, P12-14.
          40
               CR P88.
          41
               RR P20, L15 to P21, L6.
Mary Greeson’s Appellee’s Brief                                                            Page 14
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Court considered Baylor’s Occupational Injury Benefit Plan that contemplates an effort to

resolve disputes before arbitration. With all of this evidence and information, the Trial Court

correctly determined the parties had in fact agreed to defer arbitration in order to conduct

some limited discovery and complete a mediation.

          In reviewing the Trial Court’s Order for sufficiency of evidence, this Court must view

the evidence in the light favorable to the Order, crediting the favorable evidence if a

reasonable fact finder could have given the evidence credit, and disregarding contrary

evidence unless a reasonable fact-finder could not disregard that evidence.42 “If the evidence

[considered by the fact-finder] would enable reasonable and fair-minded people to differ in

their conclusions, the [fact-finder] must be allowed to do so.”43 And this Court, as a

“reviewing court”, “cannot substitute its judgment for that of the trier-of-fact, so long as the

evidence falls within this zone of reasonable disagreement.”44

          The evidence may be disputed, but competent evidence supports the Trial Court’s

determination that the parties here agreed in their Rule 11 Agreement to defer arbitration, to

conduct discovery and to complete a mediation before any arbitration. Accordingly, Mary

Greeson respectfully shows this Court should not set aside the Trial Court’s Order, as it is

supported by credible evidence and because Appellant failed to preserve error on this issue.

D.        Trial Court Correctly Found No Breach and No Material Breach

          Similar to the Trial Court’s determination that the parties agreed to defer arbitration,

          42
               City of Keller, 168 S.W.3d at 820.
          43
               Id. at 822.
          44
               Id.
Mary Greeson’s Appellee’s Brief                                                             Page 15
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the competent evidence also supports the Trial Court judgment that Mary Greeson did not

breach, or did not materially breach, the parties agreement to defer arbitration. Well settled

Texas law makes clear that one party to an agreement may not accept benefits from an

agreement and then refuse to perform its own obligations under the agreement.45 Appellant

complained below about the details of Greeson’s performance of the parties’ Rule 11

Agreement, but the evidence before the Trial Court supports a finding that Greeson

performed, or substantially performed, her obligations under the Rule 11 Agreement.

          The record on appeal shows Mary Greeson served her discovery responses on January

22, 2014.46 Greeson also explained a delay in providing the discovery.47 Documents

responsive to Appellant’s discovery requests were also served.48 Similarly, the record shows

Greeson offered two entire weeks in January and February 2014, when the depositions of

Appellant’s witnesses and the deposition of Mary Greeson could be completed.49

          Despite knowing Greeson served her discovery responses and produced responsive

documents, Appellant repeatedly argued to the Trial Court that Greeson failed to meet her

discovery obligations.50 But at the October 3, 2014 hearing, Appellant admitted Greeson had

produced medical records and medical bills in her possession, although she had few


          45
         See Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000); and
Nutt v. Members Mut. Ins. Co., 474 S.W.2d 575, 578 (Tex.App.–Dallas 1971, writ ref’d n.r.e.).
          46
               CR P27.
          47
       Id. (Mary Greeson’s “family situation has been hectic and she had another surgery on
December 19, 2013. This was unexpected and hindered our ability to respond to discovery.”)
          48
               Id.
          49
               Id.
          50
               CR P107; and CR P184, among others.
Mary Greeson’s Appellee’s Brief                                                          Page 16
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records.51 Appellant also admitted it had Greeson’s medical records from Baylor University

Medical Center and her records from Baylor doctors.52 And Appellant acknowledged the

letter that included Greeson’s offer of deposition dates to Appellant.53

          In this second sufficiency of evidence analysis, the Court again views the evidence

in the light favorable to the Order, crediting favorable evidence, and disregarding contrary

evidence unless the fact-finder could not disregard the contrary evidence.54 And if

reasonable and fair-minded people can differ in their conclusions, the fact-finder here must

also be allowed to do so.”55 This Court cannot substitute its judgment for that of the Trial

Court, as long as some evidence supports the Trial Court’s Order.56 Because the Trial Court

correctly decided that Greeson had not breached, or had not materially breached, the parties’

Rule 11 Agreement, and because that judgment is supported by credible evidence, Mary

Greeson respectfully submits that this Court should not set aside the Trial Court’s Order.

E.        Appellant is Not Entitled to Attorney’s Fees

          Appellant claims it is entitled to attorney’s fees and costs on with this appeal.57

Appellant seeks attorney’s fees based upon the terms of TEX. CIV. PRAC. & REM. CODE §


          51
         RR P17, L7-11 (MR. DUNLEAVY: ... We've given them all the ... medical records and
all the medical bills that Mary Greeson has. MS. ACKELS: Which is almost nothing.).
          52
        RR P17, L18-25 (MS. ACKELS: “Plaintiff's counsel is correct that we have those
[medical] records ...”.
          53
               RR P11, L18-19.
          54
               City of Keller, 168 S.W.3d at 820.
          55
               Id. at 822.
          56
               Id.
          57
               Appellant’s Brief, P28.
Mary Greeson’s Appellee’s Brief                                                          Page 17
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38.001(8).58 But as with Appellant’s other contentions and arguments in this appeal, the

claim for attorney’s fees is not supported by the facts, nor by Texas law.

          As noted above, Appellant did not obtain any ruling from the Trial Court that Mary

Greeson breached, or materially breached, the parties’ Rule 11 Agreement and Appellant

failed to object to this failure or refusal of the Trial Court to rule.59 Appellant also presents

no evidence that it made a demand for attorney’s fees.60 A demand must be made to establish

entitlement to attorney’s fees under TEX. CIV. PRAC. & REM. CODE § 38.002.61 Greeson also

shows that Appellant never requested a ruling from the Trial Court that it was entitled to

attorney’s fees and Appellant never objected to the lack of a ruling on its claim for attorney’s

fees.62 As Appellant failed to show it satisfied the statutory prerequisites for an award of

attorney’s fees under TEX. CIV. PRAC. & REM. CODE § 38.002; as Appellant failed to preserve

error by failing to obtain a ruling on its attorney’s fees claim and by failing to object to the

lack of a ruling on its attorney’s fees claim; and as Appellant failed to raise any issue on

appeal regarding its claim for attorney’s fees as required by TEX. R. APP. P. 33.1, Mary

Greeson respectfully shows this Court should reject Appellant’s claim for attorney’s fees.

                                       CONCLUSION

          Appellee Mary Greeson has shown clearly that this Court lacks jurisdiction to hear


          58
               Id.
          59
               CR P1-223.
          60
               Id.
          61
         Vingcard A.S. v. Merrimac Hospitality Sys., 59 S.W.3d 847, 867 (Tex.App.–Fort Worth
2001, pet. denied).
          62
               CR P1-223.
Mary Greeson’s Appellee’s Brief                                                            Page 18
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this appeal because the Trial Court did not deny Baylor’s request to send this dispute to

arbitration and because the Trial Court’s order that Appellant complains of is not “hostile to

arbitration”. As such, there is no basis in TEX. CIV. PRAC. & REM. CODE § 51.016, nor in 9

U.S.C. § 16, for this Court to find it has jurisdiction over this appeal. Greeson also

established that the Trial Court correctly found the parties agreed to defer arbitration until

after completing certain limited discovery and after completing a mediation to attempt to

resolve the parties’ dispute; and that the Trial Court was correct in finding that Mary Greeson

did not breach the parties’ agreement that deferred arbitration in order to conduct discovery

and to mediate the dispute. Because the Trial Court correctly ruled based upon sufficient

competent evidence, after a sufficiency of evidence review, this Court should affirm the Trial

Court’s Order vacating the Associate Judge’s rulings.

          Next, it is clear Appellant failed to preserve any error in this appeal by its only two

issues on appeal do not challenge the Trial Court’s October 3, 2014 Order that Appellant

appeals. Appellant never sought or obtained any ruling from the Trial Court that Mary

Greeson was required to arbitrate the dispute; Appellant never sought or obtained any ruling

from the Trial Court that Greeson breached or materially breached the Rule 11 Agreement;

and Appellant never sought or obtained any ruling on its request for attorney’s fees.

Similarly, Appellant never objected to the Trial Court failure or refusal to make the rulings

Appellant now insists it was entitled to. Given these multiple failures of Appellant, Mary

Greeson shows this Court should deny this appeal in its entirety.

          Finally, Appellant failed to plead and prove its entitlement to attorney’s fees in the


Mary Greeson’s Appellee’s Brief                                                            Page 19
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Trial Court. Appellant specifically failed to establish that it made any demand as required

under TEX. CIV. PRAC. & REM. CODE § 38.002. Appellant also failed to preserve error by

failing to obtain a ruling on its attorney’s fees claim; by failing to object to the lack of a

ruling on its attorney’s fees claim; and by failing to raise any issue on appeal on its claim for

attorney’s fees as required by TEX. R. APP. P. 33.1. Accordingly, Mary Greeson also requests

that this Court reject Apellant’s claim for attorney’s fees.

                                          PRAYER

          Appellee Mary Greeson respectfully prays that this Court affirm the Trial Court’s

Order of October 3, 2014 and award Greeson her costs of this appeal.

                                     Respectfully submitted,

                                     LAW OFFICES OF WILLIAM J. DUNLEAVY, P.C.

                                      /s/ William J. Dunleavy
                                     William J. Dunleavy
                                     Texas Bar No. 00787404
                                     825 Market Street
                                     Building M, Suite 250
                                     Allen, Texas 75013
                                     Telephone: 972/247-9200
                                     Facsimile: 972/247-9201
                                     E-mail: bill@williamjdunleavy.com
                                     Attorney for Appellee Mary Greeson




Mary Greeson’s Appellee’s Brief                                                            Page 20
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                           CERTIFICATE OF FILING AND SERVICE

       I certify that I electronically filed Mary Greeson’s Appellee’s Brief on April 6, 2015
and a true and correct copy of Mary Greeson’s Appellee’s Brief was also served
electronically through the Texas E-file system on April 6, 2015 upon counsel for Appellant
Baylor University Medical Center:

          Jay M. Wallace
          Alana K. Ackels
          Bell Nunnally & Martin
          3232 McKinney Avenue, Suite 1400
          Dallas, Texas 75204

                                       /s/ William J. Dunleavy
                                       William J. Dunleavy

                                  CERTIFICATE OF COMPLIANCE

      In accordance with the Texas Rules of Appellate Procedure, I certify that Mary
Greeson’s Appellee’s Brief contains 5,943 words, and I relied on the word count of the
WordPerfect program I used to prepare Appellee’s Reply Brief.

          Dated: April 6, 2015
                                       /s/ William J. Dunleavy
                                       William J. Dunleavy




Mary Greeson’s Appellee’s Brief                                                        Page 21
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