                                                                                             ACCEPTED
                                                                                        04-15-00061-CV
                                                                             FOURTH COURT OF APPEALS
                                                                                  SAN ANTONIO, TEXAS
                                                                                   2/23/2015 2:13:08 PM
                                                                                          KEITH HOTTLE
                                                                                                 CLERK




             No. 04-15-00061-CV4th COURT
                                     FILED IN
                                         OF APPEALS
                    __________________________________________
                                                                  SAN ANTONIO, TEXAS
               IN THE COURT OF APPEALS OF TEXAS                  02/23/2015 2:13:08 PM
                    FOURTH JUDICIAL DISTRICT                        KEITH E. HOTTLE
                                                                          Clerk
                      SAN ANTONIO, TEXAS
                    __________________________________________


                     RAVI BOTLA, M.D.,
                      Petitioner/Defendant,
                                      vs.
               SALVADOR DEL TORO, JR.,
                      Respondent/Plaintiff.
            __________________________________________
     FROM THE 131ST JUDICIAL DISTRICT COURT, BEXAR COUNTY,
     CAUSE NO. 2013-CI-19135, HON. PETER SAKAI, PRESIDING
            __________________________________________
RESPONSE IN OPPOSITION TO PETITION FOR PERMISSION TO
APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT
AND, ALTERNATIVELY, CROSS-PETITION FOR PERMISSION TO
              APPEAL ISSUE OF STANDING
                    __________________________________________




Kimberly S. Keller                           George W. Mauzé, II
SBN: 24014182                                SBN: 13238800
KELLER STOLARCZYK, PLLC                      MAUZÉ LAW FIRM
234 W. Bandera Rd. #120                      2632 Broadway, Suite 401S
Boerne, TX 78006                             San Antonio, TX 78215
Tele: 830.981.5000                           Tele: 210.225.6262
Facs: 888.293.8580                           Facs: 210.354.3909
kim@kellsto.com                              gmauze@mauzelawfirm.com
               IDENTITY OF PARTIES & COUNSEL

      Respondent agrees with Petitioner’s identification of the

parties and counsel, except to add newly-retained appellate

counsel:

           Kimberly S. Keller
           KELLER STOLARCZYK PLLC
           234 West Bandera Road
           No. 120
           Boerne, Texas 78006




                               2
                          TABLE OF CONTENTS
                                                               Page
IDENTITY OF PARTIES & COUNSEL ...................................... 2

TABLE OF CITATIONS ......................................................... 5

STATEMENT OF THE CASE ................................................. 8

ISSUES PRESENTED .......................................................... 10

      1.    Whether the following issues constitute
            “controlling questions of law about which
            there is a substantial ground for difference
            of opinion”:

            a. Was Respondent’s medical authorization
               sufficient to toll limitations as to the
               claims against Petitioner?

            b. If    the   medical    authorization was
               sufficient, was Respondent required to
               file his lawsuit on a Sunday?

      2.    Whether an immediate appeal of the
            aforementioned questions will materially
            advance the ultimate termination of the
            litigation.

      3.    Alternatively, if this Court grants the
            Petition, Respondent also asks this Court to
            grant its Cross-Petition to address the
            question of whether Respondent has
            standing to challenge the sufficiency of the
            authorization.

STATEMENT OF THE FACTS ............................................. 11

SUMMARY OF THE ARGUMENT ......................................... 14


                                        3
ARGUMENT ....................................................................... 16

I.     STANDARD OF REVIEW .................................................... 16

II.    THE RULINGS PETITIONER SEEKS TO IMMEDIATELY
       APPEAL DO NOT CONSTITUTE “CONTROLLING QUESTIONS
       OF LAW ABOUT WHICH THERE IS A SUBSTANTIAL GROUND
       FOR DIFFERENCE OF OPINION” ......................................... 17

       A.    The law governing the sufficiency of
             medical authorizations is well-established ........ 18

       B.    It is well-established that plaintiffs do not
             have to file lawsuits on Sundays ....................... 22

III.   AN IMMEDIATE APPEAL OF THE QUESTIONS WILL NOT
       MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF
       THE LITIGATION ............................................................. 25

IV.    ALTERNATIVELY, IN THE EVENT THIS COURT GRANTS
       THE PETITION, RESPONDENT CROSS-PETITIONS FOR
       PERMISSION TO APPEAL THE ADDITIONAL QUESTION
       AUTHORIZED BY THE TRIAL COURT: WHETHER
       PETITIONER HAD STANDING TO CHALLENGE THE
       SUFFICIENCY OF THE AUTHORIZATION ................................ 28

CONCLUSION ..................................................................... 31

CERTIFICATE OF COMPLIANCE & SERVICE ...................... 33

APPENDIX A – JANUARY 22,2015 ORDER OF TRIAL
    COURT




                                            4
                                TABLE OF CITATIONS

       SUPREME COURT OF TEXAS CASES

Tex. A & M Univ. Sys. v. Koseoglu,
     233 S.W.3d 835 (Tex. 2007) ................................................ 16


       TEXAS INTERMEDIATE APPELLATE COURT CASES

Barlow v. Konda,
     No. 05-98-00797-CV (Tex. App. – Dallas 2000, no
     pet.) ..................................................................................... 24

Brannan v. Toland,
    No. 01–13–00051–CV, 2013 WL 4004472 (Tex.
    App.—Hous. [1st Dist.] Aug. 6, 2013, pet. denied) ................ 21

Cantu v. Mission Reg. Med. Ctr.,
    13-12-00568-CV, 2014 WL 1879292 (Tex. App. –
    Corpus Christi 2014, no pet.) ............................................... 20

Gulf Coast Asphalt Co. v. Lloyd,
     _ S.W.3d _, 2015 WL 393407 (Tex. App. – Houston
     [14th Dist.) Jan. 29, 2015, no pet. h.)................................... 25

Gulley v. State Farm Lloyds,
     _ S.W.3d _, 2014 WL 7339462 (Tex. App. – San
     Antonio Dec. 23, 2014, no pet. h.) ........................................ 27

Hebert v. JJT Const.,
    438 S.W.3d 139 (Tex. App. -- Houston [14th Dist.]
    2014, no pet.) ...................................................................... 16

In re Estate of Fisher,
      421 S.W.3d 682 (Tex. App. – Texarkana 2014, no
      pet.) ..................................................................................... 23




                                                 5
Jefferson Cty. v. Swain,
      _ S.W.3d _, 2014 WL 6985118 (Tex. App. –
      Beaumont 2014, no pet.)...................................................... 14

King-A Corp. v. Wehling,
     No. 13-13-00100-CV, 2013 WL 1092209 (Tex. App.
     – Corpus Christi, Mar. 14, 2013, no pet.) ........................ 17,18

Mitchell v. Methodist Hosp.,
     376 S.W.3d 833 (Tex. App.—Houston [1st Dist.]
     2012, pet. denied) ................................................................ 21

Mock v. Presbyterian Hosp. of Plano,
    379 S.W.3d 391 (Tex. App.—Dallas 2012, pet.
    denied) ........................................................................... 19,20

Morgan Stanley & Co. LLC v. Fed. Deposit Ins. Co.,
    No. 14-14-00849-CV, 2014 WL 6679611 (Tex. App.
    – Houston [14th Dist.] 2014, no pet.) ..................................... 14

Phoenix Energy, Inc. v. Breitling Royalties Corp.,
    No. 05-14-01153-CV (Tex. App. – Dallas 2014,
    no pet.) ...................................................................... 14,18,22

Rabatin v. Kidd,
    281 S.W.3d 558 (Tex. App.—El Paso 2008, no pet.) .............. 20

State Fair of Tex. v. Iron Mountain Info. Mgmt., Inc.,
     299 S.W.3d 261 (Tex. App. -- Dallas 2009, no pet.) ............... 16

Target Corp. v. Ko,
     No. 05-14-00502-CV (Tex. App. – Dallas 2014, no
     pet.) ................................................................................ 16,17


       FEDERAL CASES

New Jersey Reg. Council of Carpenters v. D.R. Horton, Inc.,
    No. 08-1731, 2011 WL 1322204 (D.N.J. 2011) ..................... 25


                                               6
Speir v. Robert C. Herd & Co.,
     189 F.Supp. 436 (D.C.Md. 1960) .......................................... 26


       STATUTORY & OTHER AUTHORITY

Medical Malpractice & Tort Reform Act of 2003, 78th Leg.,
    R.S., ch. 204, § 10.11(a)(5), 2003 Tex. Gen Laws
    847 ...................................................................................... 24

TEX. CIV. PRAC. & REM. CODE ANN. § 16.072 ............................... 23,24

TEX. CIV. PRAC. & REM.CODE § 51.014 .................................. 16,23,24

TEX. R. CIV. P. 4 ............................................................................ 23




                                               7
               STATEMENT OF THE CASE

Nature of the Case:   This is a medical malpractice case. Petitioner’s
                      motion for summary judgment was denied.
                      Petitioner now asks this Court to grant him the
                      right to file an interlocutory appeal of the
                      denial of the summary judgment motion.

Trial Court:          131st  Judicial   District,   Bexar    County;
                      Honorable Peter Sakai, presiding.

Disposition:          After considering the parties’ briefing and
                      supplemental briefing, as well as the
                      arguments of counsel at the hearing, the trial
                      court denied Petitioner’s motion for summary
                      judgment. The trial court then granted the
                      parties permission to interlocutorily appeal
                      three questions: (1) whether Respondent’s
                      medical authorization was sufficient to toll the
                      statute of limitations; (2) whether Petitioner
                      had standing to challenge the sufficiency of the
                      authorization; and (3) if Petitioner had to file
                      suit on a Sunday.

Petition:             Petitioner filed this Petition with this Court
                      asking this Court to permit him to
                      interlocutorily appeal the first and third
                      questions authorized by the trial court.
Requested Relief on
Appeal by
Respondent:         Respondent asks this Court to deny the
                    Petition because the issues sought to be
                    appealed     do    not   meet    the   statutory
                    requirements imposed by Section 51.014(d).
                    Alternatively, if this Court grants the Petition,
                    Respondent asks this Court to also grant his
                    Cross-Petition to interlocutorily appeal the
                    second question authorized by the trial court:


                                  8
whether Petitioner has standing to challenge
the sufficiency of the authorization.




           9
                      ISSUES PRESENTED


1. Whether the following issues constitute “controlling questions

  of law about which there is a substantial ground for difference

  of opinion”:

     a. Was Respondent’s medical authorization sufficient to toll

        limitations as to the claims against Petitioner?

     b. If   the   medical   authorization   was   sufficient,   was

        Respondent required to file his lawsuit on a Sunday?



2. Whether an immediate appeal of the aforementioned questions

  will materially advance the ultimate termination of the

  litigation.



3. Alternatively, if this Court grants the Petition, Respondent also

  asks this Court to grant its Cross-Petition to address the

  question of whether Respondent has standing to challenge the

  sufficiency of the authorization.




                               10
                    STATEMENT OF THE FACTS

     This is a medical malpractice case. In 2011, Respondent went

to the doctor (Dr. James Lackey) for lower abdominal pain, nausea,

and vomiting.1 He was fatigued, dehydrated, and had a history of

diverticulitis and hospitalizations for acute diverticulitis, the most

recent one occurring one month prior. A CT scan revealed “a

severely diseased sigmoid colon with underlying diverticular burden

and a stricture.” Respondent was referred to Nix Hospital for further

treatment and evaluation.

     Respondent was then seen by Dr. Gerardo E. Cárcamo (Co-

Defendant in the underlying proceeding, but not a party to this

request for an interlocutory appeal), who recommended a plan for

surgery. Respondent agreed to the surgery but wanted it performed

by a surgeon in Austin who had previously performed surgeries on

family members. After the hospital inquired with the Austin surgeon

and discovered he would not be available until the next week,

Respondent requested surgery that day by Defendant Cárcamo.

However, Defendant Cárcamo had left the hospital already and



Respondent’s Statement of Facts is drawn from Respondent’s Fourth Amended
1

Petition, which is Appendix D to the Petition.
                                   11
informed the nursing staff that he would see Respondent the next

morning.

     The    next    morning,    Petitioner,     Dr.     Ravi    Botla,   a

gastroenterologist, consulted with Respondent. He recommended a

colonoscopy. Respondent refused the colonoscopy and again

expressed his decision to proceed with the surgery recommended by

Defendant Cárcamo. Defendant Cárcamo spoke to Respondent, who

again expressed his decision to proceed with the recommended

surgery,   but     Defendant   Cárcamo        changed     his   plan     to

recommending a colonoscopy before surgery.

     Thus, that day, Petitioner ordered, and Respondent was

administered, “GoLYTELY” for gastrointestinal prep before the

colonoscopy. Respondent did not have a bowel movement after the

GoLYTELY was administered. Respondent began complaining of

severe pain to his abdomen. Defendant Cárcamo and Petitioner

were notified of Respondent’s reaction to the GoLYTELY, but failed

to examine Respondent or order any diagnostic tests. Respondent’s

abdominal pain ultimately worsened to a scale of 10 out of 10 for

the next 12 hours. The next morning, a CT scan revealed the

presence of free air, which was indicative of a perforated colon.

                                  12
     Respondent was immediately taken to the operating room,

where Defendant Cárcamo found a perforated right colon and fecal

contamination, which had progressed to sepsis. Defendant Cárcamo

performed a right hemicolectomy (necessitated because of the

perforated colon from the colon prep), sigmoidectomy (necessitated

because of the diverticulitis, stricture, and obstruction), and end-

colostomy with Hartmann pouch and wound VAC placement.

Respondent then suffered extended hospitalization and multiple

more surgeries during 2012.

     In 2013, Respondent notified Defendant Cárcamo of the

impending lawsuit against him, submitted to him a medical

authorization under section 74.052 of the Texas Civil Practice and

Remedies Code, and then filed the lawsuit. Pet.App.B,C. Petitioner

concedes Respondent’s suit against Defendant Cárcamo was timely

filed. Pet. at 8. Then, in 2014, Respondent amended the lawsuit to

add Petitioner. Pet.App.D. Petitioner filed a motion for summary

judgment, contending the medical authorization submitted to

Defendant Cárcamo was insufficient to trigger the tolling provision

in section 74.015(c) of the Texas Civil Practice and Remedies Code.

Pet.App.E. The trial court denied the motion and authorized the

                                13
appeal of three questions to this Court. Pet. App. A. Petitioner now

asks this Court to grant him permission to appeal two of those

questions (Questions One and Three authorized by the trial court).

Id.

                 SUMMARY OF THE ARGUMENT

      This Court should deny the Petition. Precedent establishes

that appellate courts regularly deny permissive appeals of orders

denying summary judgment, such as the one in this case. See

Morgan Stanley & Co. LLC v. Fed. Deposit Ins. Co., No. 14-14-00849-

CV, 2014 WL 6679611, *1 (Tex. App. – Houston [14th Dist.] 2014, no

pet.) (denying permission to appeal denial of summary judgment

motion); see Jefferson Cty. v. Swain, _ S.W.3d _, 2014 WL 6985118,

*1 (Tex. App. – Beaumont 2014, no pet.) (twice denying County’s

request to permissively appeal denial of motion to dismiss).

      A review of the record demonstrates the case law presented to

the trial court (and recounted in the Petition) is not conflicting.

Rather, the differing facts relied upon by the appellate courts, all

applying the same well-established law, led to differing conclusions

in those cases. Phoenix Energy, Inc. v. Breitling Royalties Corp., No.

05-14-01153-CV, *2 (Tex. App. – Dallas 2014, no pet.) (denying

                                 14
permissive appeal because “difference of opinion” in the purportedly

“conflicting” precedent arose from difference in facts in each case,

not different interpretation of the governing law). In other words,

the law is well-established and is regularly applied by trial courts

based on the specific facts of the case, as occurred here.

     Additionally, this appeal, if allowed, will not lead to an

“ultimate termination of the litigation,” as required by section

51.014(d), because, even if Petitioner prevails, which Respondent

disputes, the remaining claims against the Co-Defendant Cárcamo

will remain at the trial court until final resolution and then move

forward on appeal to this Court. Thus, Respondent respectfully

requests this Court deny the Petition and dismiss the appeal.

     Alternatively, if this Court grants the Petition, Respondent

respectfully requests this Court grant his Cross-Petition and also

allow review of the remaining question authorized by the trial court:

whether Petitioner had standing to challenge the sufficiency of the

authorization (Question Two in the trial court’s order). Pet.App.A.




                                  15
                             ARGUMENT

                                  I.
                        STANDARD OF REVIEW

     Courts of appeals do not have jurisdiction over appeals from

interlocutory orders unless authorized by statute. Tex. A & M Univ.

Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Under section

51.014(d), this Court may accept a permissive interlocutory appeal

if: (1) the order being appealed involves a controlling question of law

as to which there is a substantial ground for difference of opinion;

and (2) an immediate appeal from the order may materially advance

the ultimate termination of the litigation. TEX. CIV. PRAC. &

REM.CODE § 51.014(d), (f); Hebert v. JJT Const., 438 S.W.3d 139,

140 (Tex. App. -- Houston [14th Dist.] 2014, no pet.).

     In determining whether to accept the appeal, this Court is

required to strictly construe the exacting requirements of an

interlocutory appeal governed by section 51.014(d). State Fair of

Tex. v. Iron Mountain Info. Mgmt., Inc., 299 S.W.3d 261, 264 (Tex.

App. -- Dallas 2009, no pet.). Moreover, the fact that the trial court

might have erred is not, on its own, a basis for a permissive appeal.

Target Corp. v. Ko, No. 05-14-00502-CV, *1 (Tex. App. – Dallas


                                  16
2014, no pet.) (denying permissive appeal from denied summary

judgment based on statute of limitations, stating “the fact that the

trial court may have erred in not granting summary judgment is not

a basis for a permissive appeal”). Rather, the pivotal question is

whether the law governing the issue appealed is unclear. In this

case, the law is clear. And, according to Respondent, the trial court

correctly applied the law.

                                 II.
  THE RULINGS PETITIONER SEEKS TO IMMEDIATELY APPEAL DO NOT
CONSTITUTE “CONTROLLING QUESTIONS OF LAW ABOUT WHICH THERE IS
       A SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION”

     In this case, the case law cited by Petitioner demonstrates that

the law governing the summary judgment ruling is well-settled.

Target Corp. v. Ko, No. 05-14-00502-CV, *1 (Tex. App. – Dallas

2014, no pet.) (denying permissive appeal on question of whether

statute of limitations was tolled because law governing the question

was “well settled”); King-A Corp. v. Wehling, No. 13-13-00100-CV,

2013 WL 1092209, *1 (Tex. App. – Corpus Christi, Mar. 14, 2013,

no pet.) (same). While Petitioner may not agree with the application

by the trial court of that law to the specific facts of this case,

Petitioner’s disagreement, in and of itself, does not authorize an


                                 17
interlocutory appeal. King–A Corp., 2013 WL 1092209, at *3 (“[W]e

disapprove of the notion that this standard [substantial ground for

difference of opinion] is met by default whenever a trial court rules

against a petitioner for permissive review.”).

A.   The   law   governing     the   sufficiency       of    medical
     authorizations is well-established.

     The parties dispute whether the medical authorization,

Pet.App.F at Exh.E, is sufficient. Petitioner contends the resolution

of this question is based on “controlling questions of law as to

which there are substantial grounds for differences of opinion.” Pet.

at 16. However, a review of the purportedly “conflicting” case law

cited by Petitioner, discussed in more detail below, reveals that each

case relied upon stems from a different set of facts. Thus, there are

no varying opinions as to the governing law, but rather, there are

varying factual underpinnings of the relied upon cases leading to

different results in those cases. Phoenix Energy, Inc. v. Breitling

Royalties Corp., No. 05-14-01153-CV, 2014 WL 6541259, *2 (Tex.

App. – Dallas 2014, no pet.) (denying permissive appeal because

“difference of opinion” arose from difference in facts in each case,

not different interpretation of the governing law). In other words,


                                  18
there are no conflicting “questions of law” as required by section

51.014(d), but rather, courts of appeals applying well-established

law to varying sets of facts.

     The Petition discusses the case law cited by Petitioner, as well

as the case law cited by Respondent, in an attempt to portray a

conflict of law. Yet, a close look at these cases shows that they all

consistently apply the same law. For example, in Mock v.

Presbyterian Hosp. of Plano, 379 S.W.3d 391 (Tex. App.—Dallas

2012, pet. denied), the authorization form in question “did not

authorize [defendants] to obtain the specified health information

about the decedent[,] [but] [i]instead, the authorization form

authorized the [defendants’] counsel to obtain that information.”

The appellate court concluded that as long as the plaintiff provides

the statutorily prescribed authorization form, the failure to

complete one of the blanks on the form does not render the form

defective. Id. at 394. The court based its decision on the statute’s

mandate that the form specified in section 74.052 is what must be

provided. Id. The court held that the plaintiffs used a “medical

authorization form [that] precisely tracked the statutorily prescribed

text.” Id. That the plaintiffs “filled the second blank out incorrectly”

                                  19
did not render the form defective. Id. Rather, the form still “satisfied

the legislative purpose,” i.e., to provide “fair warning of a claim and

an opportunity to abate the proceedings for negotiations and

evaluation of the claim[.]” Id. (citing with approval Rabatin v. Kidd,

281 S.W.3d 558, 562 (Tex. App.—El Paso 2008, no pet.)).

Accordingly, the statute of limitations was tolled under section

74.051(c). Mock, 379 S.W.3d at 392; see also Rabatin v. Kidd, 281

S.W.3d 558, 562 (Tex. App.—El Paso 2008, no pet.) (errors and

omission in section 74.052 form do not render authorization

insufficient).

     Petitioner contrasts the aforementioned cases to other cases in

an attempt to demonstrate a “conflict” in the case law. However, a

review of Petitioner’s case law reveals that his cases are based on

completely different facts, namely situations where there was either

(1) a complete lack of authorization form during the statutorily

prescribed time, or (2) a form that failed to follow the form language

specifically outlined in the statute – neither of which were present

in the underlying case before this Court. For example, in Cantu v.

Mission Reg. Med. Ctr., 13-12-00568-CV, 2014 WL 1879292 (Tex.

App. – Corpus Christi 2014, no pet.), “the authorization forms that

                                  20
Cantu provided did not correctly track the statutorily prescribed

text nor provide any of the specified information.” In fact, the Cantu

court, after reviewing its fact in light of the precedent established by

Mock and Rabatin, determined that the same law applied, but that

the different facts of Cantu required a different result. Id. at 4.

     Petitioner also relied upon Mitchell v. Methodist Hosp., 376

S.W.3d 833, 837 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

There, again, existed a different set of facts from those underlying

this case, Mock, and Rabatin. In Mitchell, the plaintiffs did not use a

section 74.052(c) form; instead, “they provided Methodist with a

HIPPA-compliant form generally authorizing the disclosure of

Mitchell's protected health care information.” Id. Additionally,

Petitioner relied on Brannan v. Toland, No. 01–13–00051–CV, 2013

WL 4004472, *2 (Tex. App.—Hous. [1st Dist.] Aug. 6, 2013, pet.

denied) (mem. op.), where once again, the plaintiffs did not use a

section 74.052(c), but, rather, “they provided a blank medical-

records release authorization form, containing Charles Brannan’s

signature only.”

     Thus, a review of the purportedly “conflicting” law reveals that

there is, indeed, no conflict. When a section 74.052 form is used,

                                   21
even if it is filled out incorrectly, the governing law provides that it

is sufficient; when a non-section 74.052 form is used, it is deemed

insufficient.   As   a   result,   although   there   may   be   differing

conclusions reached by varying appellate courts, those differing

conclusions result not from conflicting interpretations of the law,

but rather, from the differences in the facts in each case. In such

circumstances, no permissive appeal is allowed. Phoenix Energy,

Inc., 2014 WL 6541259, *2.

B.   It is well-established that plaintiffs do not have to file
     lawsuits on Sundays.

     At the outset, Respondent contends this Court need not

consider this question in the section 51.014(d) analysis, i.e.,

whether to grant the Petition for Permissive Appeal, because the

question turns on a fact issue – whether Respondent’s claim

accrued on December 17, 2011 (the first day of Petitioner’s

treatment of Respondent) or December 18, 2011 (the second day of

Petitioner’s treatment of Respondent). The only way that Petitioner’s

question on appeal becomes relevant is if Respondent’s claim

accrued on the earlier date, thereby requiring him to file suit,




                                     22
according to Petitioner, on a Sunday, as opposed to on the next

Monday, which is when Respondent filed suit. Pet. at 20.

     However, because the factual dispute (of when Respondent’s

cause of action accrued) has yet to be resolved and has not been

appealed (and has not been authorized by the trial court to

appealed), this outstanding factual dispute precludes a permissive

interlocutory appeal of this question. See In re Estate of Fisher, 421

S.W.3d 682, 685 (Tex. App. – Texarkana 2014, no pet.) (when issue

raised in permissive appeal is controlling fact question, as opposed

to controlling legal question, then appeal does not fall within

section 51.014(d)).

     If this Court disagrees, then it should, nonetheless, deny the

Petition because the law governing whether lawsuits must be filed

on Sundays, as opposed to the following Monday, is well-

established. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.072; TEX. R.

CIV. P. 4 (allowing extension of deadlines falling on weekends and

holidays to the following business day).

     Petitioner maintains that medical malpractice cases are

excluded from the extension provided by Rule 4 and section 16.072

and contends its argument presents an issue of first impression.

                                 23
Chapter 74 has been on the books since 2003. Medical Malpractice

& Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(5),

2003 Tex. Gen Laws 847, 884. Yet, in the 12 years passing between

Chapter 74’s enactment and this case, Petitioner can point to no

case wherein a court, trial or appellate, has excluded a medical

malpractice case from the extension provisions found in Rule 4 and

section 16.072.

     Thus, although Petitioner labels its argument as one of “first

impression” in an attempt to trigger the requirement of an

immediate appeal under section 51.014(d), Pet. at 20, in all

actuality, Petitioner’s argument is but a rogue minnow swimming

upstream against the plethora of authority demonstrating that

medical malpractice cases are regularly found and held to be

governed by Rule 4 and section 16.072. See generally Barlow v.

Konda, No. 05-98-00797-CV, n.3 (Tex. App. – Dallas 2000, no pet.)

(unpublished) (holding that notice of a medical malpractice suit on

a Tuesday “would be timely” because the potential accrual dates

occurred on a “Saturday, Sunday, and Martin Luther King, Jr. Day

[a legal holiday]” and citing to section 16.072).



                                   24
                               III.
    AN IMMEDIATE APPEAL OF THE QUESTIONS WILL NOT MATERIALLY
       ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION

     Petitioner argues that an appellate review of the summary

judgment order will materially advance the ultimate termination of

the litigation because, if Petitioner is correct about the legal issues,

which Respondent disputes, then Respondent’s claims against

Petitioner are time-barred. However, regardless of the outcome of

this requested appeal, the litigation will continue because there

remains another co-defendant at the trial court level, Defendant

Cárcamo. This fact precludes a determination that this appeal will

lead to the ultimate termination of the litigation. See Gulf Coast

Asphalt Co. v. Lloyd, _ S.W.3d _, 2015 WL 393407, *5 (Tex. App. –

Houston [14th Dist.) Jan. 29, 2015, no pet. h.) (denying permission

to appeal, noting there is little authority available for the standard

imposed, and recommending looking to federal law for guidance);

New Jersey Reg. Council of Carpenters v. D.R. Horton, Inc., No. 08-

1731, 2011 WL 1322204, *5 (D.N.J. 2011) (“In this case,

certification would not materially advance the ultimate termination

of the litigation. While a successful appeal would remove Horton

from the case, it would not end the litigation, as the plaintiffs would

                                  25
continue to litigate against Horton–N.J. and Tosa.”) (quoting and

citing with approval Speir v. Robert C. Herd & Co., 189 F.Supp. 436

(D.C.Md. 1960) (“But in the instant case there are now three

defendants. The case will proceed against the other two in any

event, and the retention of Newtex is not likely to prolong the trial

appreciably. It will cause some expense to Newtex, which would be

avoided if my order were reversed on appeal. That consideration,

however,   must     be   weighed   against   the   policy   discouraging

‘piecemeal appeals', discussed in the cases cited and in other

opinions under sec. 1292(b). Under the circumstances of this case, I

should not make the requested statement in the order”).

     In other words, if this Court grants the Petition, it does not

secure an “ultimate termination” of the litigation; rather, it only

ensures that two, as opposed to one, appeal will stem from the

underlying case. After this appeal is completed, regardless of the

outcome, the remaining claims will need to be disposed of by the

trial court (whether those claims involve both Petitioner and

Defendant Cárcamo or just Defendant Cárcamo) and then, in all

likelihood, this Court will face yet another appeal involving those

remaining claims.

                                   26
      Another case from this Court provides a good example of how

interlocutory appeals sometimes add to the extent of litigation, as

opposed to triggering the “ultimate termination of the litigation.”

See Gulley v. State Farm Lloyds, _ S.W.3d _, 2014 WL 7339462, *2

(Tex. App. – San Antonio Dec. 23, 2014, no pet. h.) (case originally

filed in 2008; this court was addressing the third appeal in the

underlying case, the first of which was a permissive interlocutory

appeal filed and accepted in 2010, which should have been

accepted only if the appeal led to the “ultimate termination of the

litigation”).

      Additionally, Respondent notes that this Petition fails to

address the claims brought by Respondent against Petitioner that

accrued on December 18, 2011. For those claims, Petitioner’s “you

must file on Sunday” argument is inapplicable because the

limitations period ended on a Monday, which is the date the lawsuit

was filed. As a result, those claims would not be disposed of by this

appeal, even assuming Petitioner is successful. Accordingly, those

claims would remain at the trial court level, along with the claims

pending against Defendant Cárcamo.

      In conclusion, Respondent contends this appeal, if permitted,

                                 27
will not lead to the ultimate termination of the litigation, as is

required by section 51.014(d). Accordingly, in light of the foregoing

grounds, this Court should deny the Petition and dismiss the

appeal.

                                 IV.
   ALTERNATIVELY, IN THE EVENT THIS COURT GRANTS THE PETITION,
    RESPONDENT CROSS-PETITIONS FOR PERMISSION TO APPEAL THE
  ADDITIONAL QUESTION AUTHORIZED BY THE TRIAL COURT: WHETHER
  PETITIONER HAD STANDING TO CHALLENGE THE SUFFICIENCY OF THE
                          AUTHORIZATION

      In the event this Court rejects this Response and grants the

Petition, Respondent respectfully requests this Court also grant this

Cross-Petition so that the Court may consider all three questions

authorized by the trial court. Specifically, the trial court authorized

the appeal of the following question: Does a defendant health care

provider or physician, who did not receive a notice letter and

authorization under section 74.051(a) of the Texas Civil Practice

and   Remedies    Code,   have    standing   to   complain   that   an

authorization provided to another health care provider or physician

named and sued as a defendant in the same lawsuit is insufficient

to toll the statute of limitations pursuant to Section 74.051(c)?

Pet.App.A,G (Respondent challenged standing on page 4 of his


                                  28
summary judgment response).

     In accordance with Texas Rule of Appellate Procedure 28(e)(1),

Respondent provides this Court with the following in regard to its

Cross-Petition: (1) trial court information: Salvador Del Toro v.

Gerardo E. Carcamo, M.D., and Ravi Botla, M.D., No. 2013-CI-19135,

131st District Court, Bexar County, Hon. Peter Sakai, presiding; (2)

order: January 22, 2015 Order Denying Motion for Summary

Judgment and Granting Permission to Appeal (attached as App.A);

(3) Respondent Salvador Del Toro desires to appeal the remaining

authorized question should this Court grant Petitioner’s Petition

requesting appeal of two of the three authorized questions; (4)

appeal is taken to the Fourth Judicial District Court of Appeals; (5)

this appeal will be accelerated in accordance with Texas Rule of

Appellate Procedure 28.3(k).

     Respondent contends that if this Court grants the Petition, it

should also grant review of the aforementioned question for the

following reasons. First, if this Court grants the Petition, which asks

whether the authorization is sufficient, then a question preceding

that inquiry is whether Petitioner even has the right to challenge

sufficiency   in   the   first   place.   It   would   be   inefficient   and

                                     29
unproductive to allow Petitioner’s sufficiency issue to be addressed

without first determining if Petitioner has standing to bring the

challenge in the first place.

     Second, in order for this Court to have granted the Petition,

this Court must have adopted Petitioner’s position on how the

Court should interpret the law requiring the existence of a

“controlling question of law as to which there are substantial

grounds for differences of opinion.” That section 51.014 analysis, as

urged by Petitioner, also requires this Court to hold that the

aforementioned question, related to Petitioner’s standing, also

satisfies that standard. Specifically, the question of whether a

defendant, not served with the purportedly deficient authorization,

can bring a challenge to the sufficiency of the authorization, has not

yet been addressed by any appellate court. Therefore, that question

is novel and one of first impression, which is the same argument

made by Petitioner with regard to the other two questions sought to

be appealed in this proceeding. Pet. at 22.

     Moreover, the second prong of section 51.014 is met because

the appeal of the aforementioned question may materially advance

the ultimate termination of the litigation. Specifically, if this Court

                                  30
allows appeal of this question and Respondent succeeds, then the

parties are much more likely to settle their claims before a trial on

the merits, as opposed to going through with a trial and then

appealing the issues to this Court.

                           CONCLUSION

     This Court should deny the Petition. The questions raised by

Petitioner do not constitute “controlling questions of law about

which there is a substantial ground for difference of opinion.”

Moreover, an immediate appeal based on these questions will not

materially advance the ultimate termination of the litigation. As

such, Respondent respectfully requests this Court deny the Petition

and dismiss this appeal. Alternatively, if this Court grants this

Petition, Respondent respectfully requests this Court grant his

Cross-Petition and permit review of the additional question

authorized by the trial court: whether Petitioner had standing to

challenge the sufficiency of the authorization.




                                  31
      Respectfully submitted,

      KELLER STOLARCZYK PLLC
      234 West Bandera Road,
      No. 120
      Boerne, Texas 78006
      Telephone: 830.981.5000
      Facsimile: 888.293.8580

By: /s/Kimberly S. Keller
    Kimberly S. Keller
    State Bar No. 24014182
    Email: kim@kellsto.com

      George W. Mauzé, II
      SBN: 13238800
      MAUZÉ LAW FIRM
      2632 Broadway, Suite 400S
      San Antonio, Texas 78215
      Tele: 210.225.6262
      Facs: 210.354.3909

      Counsel for Respondent




 32
             CERTIFICATE OF COMPLIANCE & SERVICE

      I certify that this Response in Opposition to the Petition for

Permission    to   Appeal   Order    Denying    Motion   for     Summary

Judgment and Alternative Cross-Petition contains 3,988 words.

Also, on February 23, 2015, I served a copy of this Response in

Opposition to the Petition for Permission to Appeal Order Denying

Motion for Summary Judgment and Alternative Cross-Petition on

those individuals listed below via this Court’s e-filing system or

facsimile:

                           Diana L. Faust
                       Michelle E. Robberson
                       COOPER & SCULLY, P.C.
                    900 Jackson Street, Suite 100
                        Dallas, Texas 75202

                     Brett B. Rowe; Nicki K. Elgie
                    EVANS, ROWE & HOLBROOK, P.C.
                   10101 Reunion Place, Suite 900
                      San Antonio, Texas 78216

                                         /s/Kimberly S. Keller
                                         Kimberly S. Keller




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