                                                                                            ACCEPTED
                                                                                       04-15-00061-CV
                                                                            FOURTH COURT OF APPEALS
                                                                                 SAN ANTONIO, TEXAS
                                                                                   3/2/2015 4:51:34 PM
                                                                                         KEITH HOTTLE
                                                                                                CLERK

                                NO. 04-15-00061-CV

                                                                      FILED IN
                  IN THE FOURTH COURT OF APPEALS4th COURT OF APPEALS
                                                 SAN ANTONIO, TEXAS
                       AT SAN ANTONIO, TEXAS
                                                                3/2/2015 4:51:34 PM
                                                                  KEITH E. HOTTLE
                                                                        Clerk
                                RAVI BOTLA, M.D.,
                                    Appellant,
                                          v.
                        SALVADOR DEL TORO, JR.,
                               Appellee.


                   On Appeal from the 131st District Court
                Bexar County, Texas, Cause No. 2013-CI-19135
                             (Hon. Peter Sakai)


 APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION
                     TO STAY TRIAL


                                Respectfully submitted,
COOPER & SCULLY, P.C.                          EVANS, ROWE
                                               & HOLBROOK, P.C.
DIANA L. FAUST                                 BRETT B. ROWE
diana.faust@cooperscully.com                   bbrowe@evans-rowe.com
Texas Bar No. 00793717                         Texas Bar No. 17331750
MICHELLE E. ROBBERSON                          NICKI K.ELGIE
michelle.robberson@cooperscully.com            nelgie@evans-rowe.com
Texas Bar No. 16982900                         Texas Bar No. 24069670
900 Jackson Street, Suite 100                  10101 Reunion Place, Suite 900
Dallas, Texas 75202                            San Antonio, Texas 78216
(214) 712-9500                                 (210) 384-3271
(214) 712-9540 (fax)                           (210) 340-6664 (fax)
                        COUNSEL FOR APPELLANT
                               NO. 04-15-00061-CV


                   IN THE FOURTH COURT OF APPEALS
                        AT SAN ANTONIO, TEXAS


                               RAVI BOTLA, M.D.,
                                   Appellant,
                                          v.
                          SALVADOR DEL TORO, JR.,
                                 Appellee.


                   On Appeal from the 131st District Court
                Bexar County, Texas, Cause No. 2013-CI-19135
                             (Hon. Peter Sakai)


 APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION
                     TO STAY TRIAL


TO THE HONORABLE JUSTICES OF THE
SAN ANTONIO COURT OF APPEALS:

      Defendant/Appellant Ravi Botla, M.D. (“Appellant” or “Dr. Botla”) files

this Reply to the Response in Opposition of Plaintiff/Appellee Salvador Del Toro,

Jr. (“Plaintiff”) to Appellant’s Motion to Stay Trial. In support of his Motion, Dr.

Botla respectfully replies as follows:

                              I.     BACKGROUND

      1.     Plaintiff filed a health care liability claim against Dr. Botla in the case

styled, No. 2013-CI-19135, Salvador Del Toro, Jr. v. Gerardo E. Carcamo, M.D.


APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 1
and Ravi Botla, M.D., in the 131st District Court of Bexar County, Texas (the

“underlying suit”). Plaintiff sued Dr. Carcamo first and then added a health care

liability claim against Dr. Botla in his First Amended Original Petition. In the

underlying suit, Dr. Botla asserts that Plaintiff’s claim is barred by the statute of

limitations contained in section 74.251 of the Texas Civil Practice & Remedies

Code.

        2.   Dr. Botla moved for summary judgment on his affirmative defense of

limitations, and the trial court, the Hon. Peter Sakai, denied his motion. Judge

Sakai, however, granted Dr. Botla’s motion for permission to appeal the

interlocutory order denying his motion, and Judge Sakai made the findings

required by section 51.014(d) of the Texas Civil Practice & Remedies Code in his

January 22, 2015 Order Denying Motion for Summary Judgment and for

Severance of Defendant Ravi Botla, M.D. and Granting Permission to Appeal (the

“Order”).

        3.   On February 6, 2015, Dr. Botla timely filed with this Court his

Petition seeking permission to appeal the Order, and concurrently filed his Motion

to Stay Trial, moving this Court to temporarily stay the trial of the underlying suit

– currently set for April 6, 2015 – while the Court considers and rules upon Dr.

Botla’s Petition and, if the Court grants permission to appeal, while the Court

considers and rules upon Dr. Botla’s interlocutory appeal. See TEX. CIV. PRAC. &



APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 2
REM. CODE § 51.014(e)(2) (permissive appeal under section 51.014(d) does not

stay trial court proceedings unless trial or appellate court orders a stay of

proceedings pending the appeal). This is the first trial setting in this case.

         4.       On February 23, 2015, Plaintiff filed his Response in Opposition to

Appellant’s Motion to Stay Trial. Plaintiff asks the Court to deny the Motion

because, according to Plaintiff, both the request to appeal and the appeal itself lack

merit.        (Resp. 9).   Plaintiff also seeks denial of the Motion as “premature,”

asserting that the trial date, April 6, 2015, is six weeks away, and during those six

weeks, the parties will be complying with other pretrial deadlines established by

the trial court’s docket control order. (See id.).

                              II.    ARGUMENT IN REPLY

         A.       Dr. Botla’s Issues Present Controlling Issues of Law on Which
                  There Are Substantial Grounds for Differences of Opinion or
                  Present Controlling Issues of Law that are Matters of First
                  Impression

         5.       Plaintiff argues that no stay is required because Dr. Botla’s request for

permissive appeal “lacks merit.” Plaintiff incorporates into his Response to the

Motion to Stay Trial many of the same arguments he made in his Response in

Opposition to Dr. Botla’s Petition for Permission to Appeal. Dr. Botla has filed his

Reply to that Response, contemporaneously with this Reply, and Dr. Botla

incorporates herein his reply arguments and authorities.




APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 3
       6.     In a nutshell, Dr. Botla disagrees that his issues for permissive appeal

lack merit and, to the contrary, asserts they satisfy the criteria for permissive

appeal: they present controlling issues of law on which there are substantial

grounds for difference of opinion, and the resolution of those issues may materially

advance the ultimate termination of the litigation (i.e., if Dr. Botla is correct,

Plaintiff’s health care liability claim against him is barred by limitations and must

be dismissed). TEX. CIV. PRAC. & REM. CODE § 51.014(d).

       7.     The first issue is whether a medical authorization provided to Dr.

Botla’s co-defendant (Dr. Carcamo) was sufficient to toll limitations for 75 days as

to Dr. Botla. It is undisputed that Plaintiff did not sue Dr. Botla within the absolute

two-year statute of limitations in section 74.251 of the Texas Civil Practice &

Remedies Code. Thus, Plaintiff’s claim against Dr. Botla is time-barred unless

Plaintiff gets the benefit of the 75-day tolling provision in section 74.051(c).1

Plaintiff claims this issue presents no controlling issue of law on which there are

substantial grounds for differences of opinion because, according to Plaintiff, the

courts of appeals are just applying the same controlling law to different sets of

facts. (Resp. 2). Dr. Botla disagrees.




1
        And, even then, Plaintiff’s claim may be time-barred, which is the topic of the second
issue for which Dr. Botla seeks permission to appeal.



APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 4
       8.     A genuine conflict exists among courts of appeals on this issue. The

El Paso Court of Appeals held, in an opinion issued before the Texas Supreme

Court’s interpretation of the key notice provisions in Carreras v. Marroquin, 339

S.W.3d 68 (Tex. 2011), that an admittedly defective authorization (which omitted

information required by the statute and did not identify which providers could

access the records) still “carries out the Legislature’s intent” behind the section

74.051 and 74.052 notice provisions and triggers the 75-day tolling of the statute of

limitations. Rabatin v. Kidd, 281 S.W.3d 558, 560-62 (Tex. App.—El Paso 2008,

no pet.). The Houston First Court of Appeals, on the other hand, held after

Carrerras v. Marroquin that a medical authorization that omits required

information and only allows release of records to plaintiff’s counsel (the same

defects in Plaintiff’s medical authorization at issue here) does not satisfy the

legislative intent behind the notice provisions and does not trigger the 75-day

tolling period. Mitchell v. Methodist Hosp., 376 S.W.3d 833, 837-38 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied). This split in authority2 fulfills the first

requirement for a permissive appeal in this case, and this Court should take the

appeal and decide whether the trial court properly interpreted and applied the

statutes to Plaintiff’s medical authorization in this case.


2
       As discussed in Dr. Botla’s Petition and his Reply to Response to Petition, numerous
other opinions reach the same result as Mitchell.



APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 5
      9.     If the trial court properly applied the statute and properly concluded

that the medical authorization triggered the 75-day tolling of limitations as to Dr.

Botla, which Dr. Botla does not concede, then this Court also should consider the

second issue on which Dr. Botla seeks permission to appeal: whether Plaintiff

timely sued Dr. Botla on March 3, 2014, which was two years and 76 days after his

claim accrued. Plaintiff asserts this issue is not ripe for permissive appeal because

the issue of when the claim accrued is a fact issue. (Resp. 5). This is not correct –

the issue of when a health care liability claim accrues is a question of law. E.g.,

Chambers v. Conaway, 883 S.W.2d 156, 159 (Tex. 1993); Neal-Moreno v. Kittrell,

52 S.W.3d 782, 785 (Tex. App.—San Antonio 2001, pet. denied).

      10.    Nonetheless, Dr. Botla seeks permission to appeal only the issue of

whether, if Plaintiff’s health care liability claim accrued on December 17, 2011,

Plaintiff had to file suit on or before March 2, 2014 (two years and 75 days later)

or whether rule 4 of the Texas Rules of Civil Procedure and section 16.072 of the

Texas Civil Practice & Remedies Code extended the absolute Chapter 74 statute of

limitations an extra day (from Sunday, March 2, 2014 to Monday, March 3, 2014),

such that Plaintiff timely filed his claim against Dr. Botla.       The trial court

expressly ruled on this issue in its Order granting permissive appeal. (Apx. Tab A

at 2). Dr. Botla does not contest the trial court’s ruling that, if Plaintiff’s claim




APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 6
accrued on December 18, 2014 or thereafter, Plaintiff timely sued Dr. Botla on

March 3, 2014. (See id.).

       11.     Dr. Botla asserts that the issue of whether the absolute statute of

limitations in the medical malpractice statute can be extended by a civil procedure

rule or competing statute is a matter of first impression in Texas. Section 74.251

(the limitations provision) and its predecessor, section 10.01 of former article

4590i, expressly state that the statute applies “notwithstanding any other law,” and

the sections have been interpreted as foreclosing the operation of any other statute

that would otherwise extend limitations. See Molinet v. Kimbrell, 356 S.W.3d 407,

413 (Tex. 2011) (citing Chilkewitz v. Hyson, 22 S.W.3d 825, 829-30 (Tex. 1999)).

       12.     Research revealed no Texas case squarely addressing this limitations

issue,3 and issues of first impression are appropriate for resolution via permissive

appeal.      See, e.g., Belehu v. Lawniczak, 437 S.W.3d 913, 915 (Tex. App.—


3
        The footnote cited by Plaintiff from Barlow v. Konda, No. 05-98-00797-CV, 2000 WL
921239 at *5 n.3 (Tex. App.—Dallas 2000, no pet.) (not designated for publication), contains
pure dicta and is not precedent. E.g., Boswell v. Pannell, 107 Tex. 433, 180 S.W. 593, 596-97
(1915) (expression by court on question not up for decision is purely obiter dictum and not in
any way controlling as precedent). The statements in the footnote were not a ruling on an issue
being decided in the case and, in fact, became irrelevant once the court of appeals decided the
issue before it – that plaintiff’s claim accrued on December 28, 1993 (date of the last tort) instead
of the last date of treatment (January 15, 1994) or the date of death (January 16, 1994). Id. at *3,
*4. The footnote discussion of whether the January 16, 1996 notice letter would have been
timely for a January accrual date constituted obiter dicta. Plus, the court did not determine
whether the “notwithstanding any other law” language of section 10.01 (also in section 74.251)
precluded application of section 16.072. And, because Barlow predated the codification of
section 74.002, the Barlow court could not have considered the impact of 74.002 on any attempt
to extend limitations beyond the absolute two-year deadline in section 74.251.



APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 7
Houston [14th Dist.] 2014, pet. filed); Certain Underwriters at Lloyd’s of London v.

Cardtronics, Inc., 438 S.W.3d 770, 774, 778 (Tex. App.—Houston [1st Dist.]

2014, no pet.). Thus, this issue is ripe for review via permissive appeal.

      B.     Resolution of Dr. Botla’s Issues in a Permissive Appeal May
             Materially Advance the Ultimate Termination of the Underlying
             Suit

      13.    Finally, Plaintiff asserts that this Court’s acceptance and resolution of

Dr. Botla’s appeal issues will not materially advance the ultimate termination of

the underlying suit because Plaintiff will still have a pending health care liability

claim against the co-defendant, Dr. Carcamo. (Resp. 6-7). Plaintiff has no Texas

law to support this proposition. Moreover, Plaintiff’s theory ignores the plain

language of the permissive appeal statute – the permissive appeal does not have to

terminate the underlying suit; rather, it is sufficient if the permissive appeal “may

materially advance the ultimate termination” of the underlying suit. TEX. CIV.

PRAC. & REM. CODE § 51.014(d)(2). Courts have accepted permissive appeals that

resolved some, but not all, claims presented in the underlying suit. See e.g., ADT

Security Svcs., Inc. v. Van Peterson Fine Jewelers, 390 S.W.3d 603, 604-08 (Tex.

App.—Dallas 2012, no pet.).

      14.    Further, it is beyond dispute that, if this Court accepts this appeal and

(a) rules in favor of Dr. Botla on the first issue, the statute of limitations bars

Plaintiff’s claim and it will be dismissed; or (b) rules against Dr. Botla on the first



APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 8
issue but in favor of Dr. Botla on the second issue, the statute of limitations bars

Plaintiff’s claim and it will be dismissed. In either instance, the appeal may

materially advance the ultimate termination of the litigation by eliminating all

claims against one defendant.

         C.    This Court Should Grant the Motion to Stay

         15.   In sum, Dr. Botla asserts his issues provide a proper basis for a

permissive appeal and satisfy the criteria of section 51.014(d) of the Texas Civil

Practice & Remedies code.       Moreover, a temporary stay of the trial of the

underlying suit while the Court considers Dr. Botla’s Petition and, if granted, while

the Court rules on the appeal, will preserve the status quo and will serve the

important interests of judicial economy and fairness to the trial court and the

litigants. The Motion is not premature because the trial setting is now only five

weeks away, and Dr. Botla wishes to avoid the time and expense of preparing for a

trial that could be obviated if the Court accepts Dr. Botla’s appeal and rules in his

favor.

         THEREFORE, Appellant Ravi Botla, M.D. respectfully prays that this

Court grant the relief requested in his Motion and all other relief as this Court

deems just.

                                       Respectfully submitted,

                                       COOPER & SCULLY, P.C.



APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 9
                                     By: /s/Diana L. Faust
                                         DIANA L. FAUST
                                         diana.faust@cooperscully.com
                                         Texas Bar No. 00793717
                                         MICHELLE E. ROBBERSON
                                         michelle.robberson@cooperscully.com
                                         Texas Bar No. 24073089

                                     900 Jackson Street, Suite 100
                                     Dallas, Texas 75202
                                     TEL: (214) 712-9500
                                     FAX: (214) 712-9540

                                     and




APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 10
                                      EVANS, ROWE & HOLBROOK, P.C.
                                      BRETT B. ROWE
                                      bbrowe@evans-rowe.com
                                      Texas Bar No. 17331750
                                      NICKI K. ELGIE
                                      nelgie@evans-rowe.com
                                      Texas Bar No. 24069670
                                      10101 Reunion Place, Suite 900
                                      San Antonio, Texas 78216
                                      TEL: (210) 340-6555
                                      FAX: (210) 340-6664

                                      ATTORNEYS FOR APPELLANT
                                      RAVI BOTLA, M.D.



                         CERTIFICATE OF SERVICE

      I hereby certify that I served a true and correct copy of this Reply upon the
following counsel of record by the method indicated, on this 2nd day of March,
2015:

George W. Mauze, II                                                   VIA EFILE
gmauze@mauzelawfirm.com
Mauze Law Firm
2632 B4roadway, Suite 401S
San Antonio, Texas 78215
Counsel for Appellee

Kimberly S. Keller                                                    VIA EFILE
kim@kellsto.com
Keller Stolarczyk, PLLC
234 W. Bandera Road, #120
Boerne, Texas 78006
Co-Counsel for Appellee

                                       /s/Diana L. Faust
                                      DIANA L. FAUST




APPELLANT’S REPLY TO RESPONSE IN OPPOSITION TO MOTION TO STAY TRIAL– Page 11
