                                                                                      ACCEPTED
                                                                                  05-17-01221-CV
                                                                        FIFTH COURT OF APPEALS
                                                                                  DALLAS, TEXAS
                                                                                1/29/2018 2:46 PM
                                                                                       LISA MATZ




                                                                                                         5th Court of Appeals
                                                                                           CLERK




                                                                                                          FILED: 1-31-18
                                                                                      Lisa Matz, Clerk
                         NO. 05-17-01221-CV
                                                                RECEIVED IN
                                                          5th COURT OF APPEALS
               3Jn tbe jf tftb '!Court of �ppeals              DALLAS, TEXAS
                                                          01/29/2018 2:46:44 PM
                        11Ballas, m:exas                         LISA MATZ
                                                                   Clerk




THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER,
                       Appellant,
                                   V.
     CHARLES WAYNE TAYLOR and ROSEMARY TAYLOR,
                     Appellees.

    On Appeal from the 14th Judicial District of Dallas County, Texas
                 Trial Court Cause No. DC-16-08022
           The Honorable Eric V. Moye, Presiding Judge


                      APPELLEES' BRIEF

                                    Brenda J. Williams
                                    State Bar No. 21515300
                                    Bank of America, Oak Cliff Tower
                                    400 South Zang Blvd., Suite 1200
                                    Dallas, Texas 75208
                                    Tel: (214) 946-0865
                                    Fax: (214) 948-3038
                                    bwilliams@bjwilliamslaw .com
                                    Counsel for Appellees
                                    Charles Wayne Taylor and
                                    Rosemary Taylor




                 ORAL ARGUMENT REQUESTED
                     REQUEST FOR ORAL ARGUMENT

      Pursuant to Rules 39.1 and 39.7 of the Texas Rules of Appellate Procedure,

Appellees hereby request oral argument i.n this case.




                                        11
                                       TABLE OF CONTENTS

                                                                                                          PAGE



REQUEST FOR ORAL ARGUMENT ..................................................................... ii

TABLE OF CONIBNTS ............................................................................................... iii-iv

INDEX OF AUTHORITIES................................................................................... v-viii

STATEMENT OF THE CASE...... ........ ........... . . . .......... .... ....... .... . . ..... ix-x

ISSU E PRESENTED .................................................................................................. xi

APPELLEES' BRIEF .............................................................................................. l

FACTUAL BACKROUND AND PROCEDURAL HISTORY ......................... .... 2

SUMMARY OF THE ARGUMENT ..................................................... ..................... 4-5

AR.GUMENT AND AUTHORITIES ............................................................................ 6-13

ISSUE: Om THE TRIAL COURT ERR IN DENYING UT SOUTHWESTERN'S
        MEDICAL Center's PLEA TO THE JURISDICTION AND MOTION FOR
        SUMMARY JUDGMENT.

                 A.       Standard ofReview ........................................................................ 6

                 B.      Appellees filed suit Within the TMLA Statute ofLimitations.. .. 7-8

                 C.      UTSW as a Component of UT System Notice and Was Not Placed

                          At Any Disadvantage... ...... ...... .. .. . . ..... . . . ..... .... .... . ... .. 8-12


                 D.       UT SW had Notice When Original Petition was filed and Served
                          on UT System's General Counsel. ............. ... ...................... 13



                                                        Ill
 PRAYER ......................................................................................................................... 14

. CERTIFICATE OF CO:MPLIANCE .................................................... 14

 CERTIFICATE OF SERVICE ............................................................................... 14-15




                                                           iv.
                             INDEX OF AUTHORITIES

 CASES                                                                                        PAGE


Bailey v. Univ. of Texas Health Science Center at San Antonio,
       261 S.W.3d 147 (Tex. App.-San Antonio 2008, pet. granted) ............ 11

Barth v. Bank of America, N.A. 351 S.W. 3d 875 (Tex. 2011) ...................... 11

 Bland I. S.D. v. Blue,.
       34 S.W.3d 547 (Tex. 2000) ........................................................ 6

Craig v. White Plaza Hotel,
       289S.W 2d625 (Tex. Civ. App.-Waco 1956, writref'dn.r.e) ................ 10

 Charter Oak Fire Ins. Co, v. Square, 526 S.W. 2d 635 (Tex. Civ. App.-Waco
 1975, writ ref'd n.r.e.) ..................................................................... .10


Diversicare General Partners, Inc. v. Rubio,
      185 S.W.3d 842 (Tex. 2005) ........................................................ 7

 Garland Community Hospital v. Rose,
       156 S.W. 3d 54l(Tex. 2004) ....................................................... 7

 Dougherty v. Gifford,
      826 S.W. 2d 668 (Tex App.-Texarkana 1992, no writ) ......................... 10

 Flour Bluff I. S.D. v. Bass,
        133 S.W. 3d 272 (Tex 2004 ....................................................... 12

In Re Greater Houston Orthopaedic Specialists, Inc.,
       S. W 3d (Tex.2009) ... ...................................................................... 10


 Murphy v. Russell,
      167 S.W.3d 835 (Tex. 2005) ........................................................ 8




                                             v
Prairie View A&M Univ. v. Chatha,
      381 S.W.3d 500 (Tex. 2012) ........................................................................ 8

Reddy Partnership/5900 North Freeway LP v. Harris County Appraisal District,
      370 S.W. 3d 373 (Tex. 2012) ............................................. 5,10,13

Rico v. Judson Lofts, Ltd.,
        404 S.W. 3d 762 (Tex. App.-San Antonio 2013, pet. denied) ............... 10


Shell Pipe Line Co. v. Wheeler,
        730 S.W. 2d 851 (Tex. App.-El Paso 1987, writ ref'd n.r.e.) ............... ll


Sloan v. Farmer,
      217 S.W.3d 763 (Tex.            App.~Dallas        2007, pet. denied) ........................ 7


Texas Dept. ofParks & Wildlife v. Miranda,.
      133 S.W.3d 217 (Tex. 2004) ......................................................................... 6

Texas A&M Univ. v. Koseoglu,
      233 S.W.3d 835 (Tex. 2007) ....................................................... 6

Univ. ofTexas at Austin v. Hayes,
      327 S.W.3d 113 (Tex. 2010) ......................................................................... 6

Univ. of Texas Health Science Center at San Antonio v. Bailey,
      332 S.W.3d 395 (Tex. 2011) ........................................................ 11




                                             vi
Whitehead v. Univ. of Texas Health Science Ctr. at San Antonio,
     854 S.W.2d 175 (Tex. App.-San Antonio 1993, no pet.) .......................... 12


STATUTES

Texas Education Code Ann.
      §§ 65.11 ....................................................................................................... 8
      §§ 65.31(g) ................................................................................................... 8
      §§ 65.31 (a) ................................................................................................... 8,9
      §§ 65.02 ........................................................................................................ 8,9



Texas Medical Liability Act (TMLA)
      Chapter 101 .................................................................. ix,x,2,4,7


Texas Tort Claims Act (TTCA), Texas Civil Practice and Remedies Code

         §§ 74.001 ................................................................................................ .ix,x,7


         §§ 74.051 ................................................................................................ .ix,x,2



         §§ 74.251 ................................................................................................. .ix,x,2




                                                      vii
                                                       i
RULES

Texas Rules of Appellate Procedure

      Rule 38.2 ............... __ .............................................................. 1
      Rules 39.1 and39.7 .................................................................. .ii
      Rule 9.2 .................................... . ........................................... 14
      Rule 9.4 ................................................................................ 14
      Rule 9.5(b) ......... .... ......... ..... ............................................. 14,15

Texas Rules of Civil Procedure


      Rule 62 ... __ ......................................................................... 10




                                         viii
STATEMENT OF THE CASE

     This case is a health care liability claim filed
     against a governmental unit of the State of
     Texas under the Texas Medical Liability Act
     (TMLA), Chapter 74, and the Texas Tort Claims
     Act (TTCA), Chapter 101, of the Texas Civil
     Practice and Remedies Code. Appellees' health
     care liability claims arise out of two bladder
     related surgeries performed on Charles Wayne
     Taylor at the V.A. North Texas Health Care
     System in Dallas, Texas, on April21 and April
     24, 2014. During these procedures, Appellees
     assert that a physician at Uf Southwestern
     committed negligence that led to alleged
     personal injuries to Mr. and Mrs. Taylor.
     Appellees provided pre-suit notice of claim to
     University of Texas Southwestern Medical
     Center by sending the notice to Leah Hurley,
     The applicable statute of limitations under the
     TMLA, which is two (2) years plus 75 days for
     Appellees' claim, ran on July 8, 2016. The
     lawsuit naming the defendant as "University of
     Texas Southwestern Medical Center/The
     University of Texas System" was filed on July
     5, 2016. On July 18, 2016, the original petition
     and citation was served by certified mail on the
     Vice Chancellor and General Counsel for
     University of Texas System. (CR 117-118).
     Appellees amended the petition revising the
     defendant's name to "University of Texas
     Southwestern Medical Center" on February 22,
     2017. (CR138-143). University of Texas
     Southwestern Medical Center is a component
     of The University of Texas System and
     therefore clearly had notice of the lawsuit on
     on July 18, 2016 when service made on Uf
     System Chancellor and General Counsel. UT
     Southwestern Medical Center and UT System
     are closely related entities and the filing of the
     amended petition related back to the filing of


        ix
the original pet1t10n. (App. A). In this case,
there was no failure to comply with the
applicable statute of limitations under TMLA
which negated a waiver of UT Southwestern's
sovereign immunity under the TTCA.




 X
                 ISSUE PRESENTED

   DID THE TRIAL COURT ERR IN DENYING UNIVERSITY OF
TEXAS SOUTHWESTERN MEDICAL CENTER'S PLEA TO THE
JURISDICTION AND MOTION FOR SU1\1MARY JliDGMENT.




                   XI
                              NO. 05-17-01221-CV


                    ]n tbr jfiftb QCourt of §ppeals
                              iJ.Ballas, Ut:exas

   THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER,
                          Appellant,
                             v.
        CHARLES WAYNE TAYLOR and ROSEMARY TAYLOR,
                          Appellees.

         On Appeal from the 14th Judicial District of Dallas County, Texas
                      Trial Court Cause No. DC-16-08022
                The Honorable Eric V. Moye, Presiding Judge


                           APPELLEES' BRIEF


TO THE HONORABLE FIFTH COURT OF APPEALS:

      Pursuant to Rule 38.2 of the Texas Rules of Appellate Procedure, Appellees'

Brief Charles Wayne Taylor and Rosemary Taylor ("Taylors"), in the above styled

and numbered appeal, files this Brief and would respectfully show that the Court

should affirm the trial court order denying University of Texas Southwestern

Medical Center's Plea to the Jurisdiction and Motion for Summary Judgment.




                                       1
               FACTUAL BACKGOUND AND PROCEDURAL HISTORY


   Plaintiffs' Original Petition was filed naming "University of Texas Southwestern

Medical Center/University of Texas System" as Defendant on July 5, 2016, within

the two-year and seventy-five-day statute of limitations period as set out in Texas

Healthcare Liability Act, Texas Civil Practice and Remedies Code §§ 74.051 &

74.251. Plaintiffs' First Amended Original Petition, was filed on February 22, 2017

and revised the name of the Defendant to "University of Texas Southwestern

Medical Center" ("UTSW')

   In addition, UTSW had actual notice of the claim within the six month time

period allowed by the TTCA. Plaintiffs injuries claimed in this case were related to

treatment by UTWS physician, Ryan J. Mauck, during April21 to Apri130, 2014 at

the Dallas Veterans Medical Center involving surgical equipment being left in after

surgery. On July 8, 2014 surgery was performed at UTSW by another UTWS

physician to remove the surgical equipment left in during the prior surgery.


     On April 19, 2016, Appellees certified mailed Leah Hurley, UTSW's Vice President,

Legal Affairs the pre-suit notice of claim pursuant to §74.051 of the TMLA. ( CR 280-

285) On July 5, 2016, Plaintiffs' Original Petition was filed naming "University of

Texas Southwestern Medical Centerffhe University of Texas System as the defendant

in the case. (CR 13-18). On July 18, 2016, David Miller, of UT System's General

Counsel's Office signed and accepted the citation whlch stated "University of Texas

                                        2
Southwestern Medical Center" as the Defendant on the behalf of the Chancellor and

General Counsel, Daniel H. Sharphom, JD. (117-118, 82). UTSW does not dispute that

UTSW is not a component of and one of fourteen educational institutions governed by

UT System and are therefore closely related entities. (CR 120-122) (App. A). On

December 22, 2016, UT System filed a Plea to the Jurisdiction alleging that no UT

System employees were involved in the health care in question. On February 22, 2017

Plaintiffs filed their First Amended Original Petition, which changed the name of the

Plaintiff from "University of Texas Southwestern Medical Center/The University ofTexas

System" to "University of Texas Southwestern Medical Center" (CR 73-96). On February

28, 2017, the Court granted UT System's Plea and severed the UT System from the

amended suit. (CR-147-148). Defendant UTSW was served with Plaintiffs' First

Amended Original Petition on March 4, 20 I 7 and filed their Original Answer and Jury

Demand on March 23, 2017 (CR 256-259, 260-265).

    UTSW filed a Plea to the Jurisdiction and Motion for Summary Judgment

 based on the defense of statute of limitations. (CR 213-265). On October 4, 2017,

 an oral hearing was held and the trial court denied UTSW's PJea to Jurisdiction and

 Motion for Summary Judgment (CR 336).




                                        3
                       SUMMARY OF ARGUMENT




       UTSW's sovereign immunity has been waived in this case. Appellees

complied with all prerequisites to filing suit and timely filed suit within the

statutory period. In health care liability claims against state governmental units, a

plaintiff must comply with the requirements of both the TTCA and Texas Medical

Liability Act (TMLA). The applicable statute of limitations under the TMLA is

two-years plus 75 days, if proper pre-suit notice of claim is provided. Appellees

argument is based on the amended petition relating back to the filing of the original

petition and therefore timely filed in instances where there is merely a misnaming

of the defendant, involves related parties, misnamed party had notice and was not

placed at any disadvantage.

      Appellees did not fail to comply with TMLA statute of limitations in filing

their suit against UT Southwestern Medical Center/UT System, which amounted to

simply misnaming the Defendant. Appellees filed their original suit against

"University of Texas Southwestern Medical Center/ University of Texas System"

within the TMLA's limitations period. In this case, the misnaming involved closely

related parties as University of Texas Southwestern Medical Center is a component




                                         4
ofThe University of Texas System. (App. A).

   Appellees misnaming the Defendant in their original petition does not prevent the

waiver ofUT Southwestern's sovereign immunity under the TTCA. In Appellees case,

the amended petition related back to the original suit which named "University of

Texas Southwestern Medical Center!University of Texas System" as the Defendant. In

Appellees' case, the tolling doctrines of misnomer and/or misidentification allows an

abatement of the proceeding until the misnomer is corrected. Reddy Partnership/5900

North Freeway LP v. Harris County Appraisal District, 370 S.W. 3d 373, 55 Tex. Sup.

Ct. J. 1099, 1101 (Tex. 2012). Appellees lawsuit was timely filed and the amended

petition related back and merely served to clarify the name of the Defendant.

Therefore, the trial did not commit reversible error in denying UTSW's Plea to the

Jurisdiction.




                                        5
                      ARGUMENT AND AUTHORITIES




    A. Standard of Review


   The Court must review evidence as it relates to the question of the Court's

jurisdiction. Miranda, 133 S.W.3d at 223 & 226-228; Bland !.S.D. v. Blue, 34

S.W.3d 547, 555 (Tex. 2000). If the jurisdictional evidence is undisputed or fails

to raise a fact question, the suit should be dismissed for want of subject matter

jurisdiction; Texas A&M Univ. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

However, courts are to construe the pleadings liberally in favor of the Plaintif. In

Univ. of Texas at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010), the Texas

Supreme Court reasoned as follows:



          When a plea the jurisdiction challenges the existence of jurisdictional
          facts, the trial court must review the relevant evidence to determine
          whether a fact issue exists. Miranda, 133 S. W. 3d at 226. The Plaintiff
          bears the burden to allege facts demonstrating jurisdiction, and we
          construe the pleadings liberally in the plaintiffs favor. !d. If the
          evidence raises a fact question on jurisdiction, the trial court cannot
          grant the plea, and the issue must be resolved by the trier of fact.Jd
          at227-228.




                                        6
B.    Appellees Filed Suit Within the TMLA Statue of Limitations


     UTSW contends that in a statutory cause of action against a governmental

entity, the failure to adhere to the statute's mandatory provisions that must be

accomplished before filing suit is a jurisdictional bar to suit. AppelJees filed suit

on July 5, 2016, which was within the applicable statute oflimitations. (CR 13-

18). The facts in Appellees case are clearly distinguishable from all of the cases

cited by UT Southwestern in light of the fact that Appellees lawsuit was filed

within the two years and 75 day time period. In bringing their medical

negligence/ health care liability claim against UTSW/UTS, Appellees complied

with the TMLA as well as the TTCA. Tex. Civ. Prac. Rem. Code Ann.§§

7 4.001 et seq. The cases cited by Appellant to support their argument, all involve facts in

which the lawsuit was filed after the statute oflimitation ran or the plaintifPs failure related

timely perform other prerequisites to filing suit. In Diversicare General Partners, Inc. v.

Rubio, 185 S.W.3d 842,851 (Tex. 2005), the medical liability suit was filed four

years after claim arose. In Murphy v. Russell, 167 S.W.3d 835, 837-38 (Tex.

2005), expert report was not filed within the 180-day time period. In Garland

Community Hasp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004), the issue was

whether there was a good faith effort to comply with definition of an expert

report. In Sloan v. Farmer, 217 S.W.3d 763,767 (Tex. App.-Dallas 2007, pet.

                                           7
       denied), involved the failure of the plaintiff to file an expert report. Furthermore,

       Prairie View A&M University v. Chatha, 381 S.W.3d at 510, was cited by UTSW

       relating to, no waiver of immunity where a party fails to adhere to the statutes

       mandatory provisions. Chatha involved whether the 180-day statutory pre-suit

       requirement of filing a complaint with the Texas Workforce Commission was

       required to be complied with prior to the filing an EEOC discrimination lawsuit

       The cases UTSW is relying on to support their no waiver argument are clearly

       distinguishable from Appellees case, in that Appellees timely filed their original

       suit and timely satisfied all other pre-suit requirements within the statutory period.



C.      UTWS as a Component of UTS and Subject to UTS Governance had Notice of
        Original Petition, Was Not Surprised or Placed at any Disadvantge

           Section 65.11 of the Education Code charges the UT Board ofRegents with the

     "administration" and "organization" of the UT System institutions and entities to "achieve

 the maximum operating efficiency of such institutions and entities.'' Tex. Educ. Code

 Ann. §65.11 (West 2002). (App. A). Section 65.3l(g) allows the UT Board of Regents

     "by rule to delegate a power or duty of the board to a committee, officer, employee, or

 other agent of the board." Jd. §65.31(g). (App. A) Section 65.31(a) provides that the UT

 Board of Regents "is authorized and directed to govern, operate, support, and maintain

     each of the component institutions that are now or may hereafter be included



                                                8
in a part of The University of Texas System." !d. § 65.3l(a). Section

65.02 specifically lists 12 entities that comprise the UT System. !d. § 65.02. It

further lists 29 subordinate entities that are included within the 12 main

entities. !d. The statute specifically identifies UT Southwestern Medical

Center.Jd. Subsection (b) provides that "The University of Texas System shall

also be composed of such other institutions and entities as from time to time may

be assigned by specific legislative act to the governance, control, jurisdiction, or

management ofThe University ofTexas System." !d. § 65.02(b).

    The Chancellor and General Counsel for University of Texas Systems was

served via certified mail with Plaintiffs Original Petition on July 18, 2016 and

the Officer's Return shows "University of Texas Southwestern Medical Center"

as the Defendant. (CR 117-118). The citation was accepted by UT Systems,

presumably on behalf ofUTSW as one of their component institutions. UTSW

has not alleged that they were not put on notice of the lawsuit or were placed at

any disadvantage by the misnomer of the plaintiff in the original petition as,

"University of Texas Southwestern Medical Center/ University of Texas System".




                                      9
    Pursuant to Texas Rule of Civil Procedure 62, an error in naming a

party to a suit or a faulty description of the status or capacity of a party may

be corrected by a proper amendment to the pleadings Tex. R. Civ. P. 62.

When the error consists merely of a "misnomer," such as misstating the

party's name, capacity, or status, the amended pleading relates back to the

original filing and tolls the applicable statute of limitations In re Greater

Houston Orthopaedic Specialists, Inc., 295 S. W3d 323, 325-326 (Tex.

2009) (plaintiff's misidentification of itself did not mislead defendant);

Rico v. Judson Lofts ,Ltd, 404 S. W3d 762, 765-766 (Tex. App.-San

Antonio 2013, pet. denied) Charter Oak Fire Ins. Co. v. Square, 526

S. W2d 635, 637 (Tex. Civ. App.-Waco 1975, writ ref'd n.r.e.) Craig v.

White Plaza Hotel, 2898. W2d 625, 630 (Tex. Civ. App.-Waco 1956, writ

ref'd n.r.e.) Dougherty v. Gifford, 826 S. W2d 668, 676---677(Tex. App.-

Texarkana 1992, no writ.       In cases involving a misnomer that is not

misleading and the parties are aware of the entity the misnomer is referring

to the wrongly identified party is entitled to an abatement of the proceeding

until the misnomer is corrected. Reddy Partnership/5900 North Freeway

LP v. Harris County Appraisal District, 370 S. W3d 373, 55 Tex. Sup. Ct. J.

1099, 1101 (Tex. 2012) (no prejudice or disadvantage from misnomer);


                                      10
   Barth v. Bank of America, NA., 351 S. W.3d 875, 876--877 (Tex. 2011) (no

   misnomer when party misnames itself or another party, but correct parties

   are involved); Shell Pipe Line Co. v. Wheeler, 730 S. W.2d 851, 852 (Tex.

   App.-El Paso 1987, writ ref'd n.r.e.) (prior dealings and correspondence

   between parties in correct name of corporation precluded finding of

   surprise when amendment of pleadings offered to correct name).

  In University of Texas Health Science Center v. Bailey, 332 S. W. 3d 395(Tex.

2011), the Supreme Court of Texas, stated that the relation-back doctrine does not

affect the running of limitations on a cause of action; rather, it defines what is to be

included in "the action" to which limitations applies. The Court reasoned as follows:



     The relation-back doctrine does not affect the running of limitations on a
     cause of action; rather, it defines what is to be included in "the action" to
     which limitations applies. The common law took a very narrow view.
     Professor Wright and his co-authors tell us:

           At common law a litigant had very little freedom to amend the
           written pleadings other than to correct formal defects and
           remedy errors of oversight.      Thus, an amendment that
           attempted to introduce [**12] a new cause of action or to
           change the form of the action - for example, from trespass to
           trespass on the case- would be disallowed. 24

   Our early view was similarly strict. In a 1901 case, we held that in a suit for
   breach of an express contract, a claim for breach of an implied contract,
   added by amended pleadings, was barred by limitations. 25 To avoid the bar
   of limitations, we said, "[i]t is not sufficient that the causes of action be



                                        11
          similar in their nature, but they must be essentially identical." 26 The
          Legislature    took a broader approach in 1931 , enacting the rule that
          remains the law today:

                If a filed pleading relates to a cause of action, cross action,
                counterclaim, or defense that is not subject to a plea of
                limitation when the pleading is filed, a subsequent amendment
                or supplement to the pleading that changes the facts or
                grounds of liability or defense is not subject to a plea of
                limitation unless the amendment or supplement is wholly
                based on a new, distinct, or different transaction or
                occurrence. 2 7

         But narrow or broad, the purpose of the relation-back doctrine is to determine
         not when, but on what limitations runs. Because the doctrine does not impede
         the running of [**13] limitations on health care liability claims, it is not,
         under Chilkewitz, an "other law", the application of which is forbidden. Even
         apart from Chilkewitz, because the doctrine determines "the action" that must
         be timely filed, its application is a matter of necessity. 322 S.W. 3d 395, 399.



   Furthermore, the limitations period should be tolled if there is a determination that

Plaintiff misidentified the Defendant in the original petition. "Misidentification", is the

naming of an existing person or entity under the mistaken belief that that person is the

correct party. The Texas Supreme Court has held that the statute of limitations will be

tolled in misidentification cases if there are two separate, but related, entities that use a

similar trade name and the correct entity had notice of the suit and was not misled or

disadvantaged by the mistake. Flour Bluff IS.D. v. Bass, 133 S. W3d 272, 274 (Tex.

2004).


                                           12
D. UTSW Had Notice of the Suit when Plaintiff's Original Petition was Filed
   and served on UT System's General Counsel

      UTSW's alternative argument relating to failure of Appellees to use due

diligence in obtaining service on UTSW, does not apply in this case. The purpose

of service is to provide notice of the suit. UTS W had notice of the suit when

UT System's General Counsel, Daniel H. Sharphorn, J.D. was served with

citation on July 18,2016 (CR117-118, 82). According toUT System's website,

the Office of their General Counsel provides comprehensive legal services to and

for their 14 UT institutions, and manages litigation services provided by the

Attorney General's Office and outside counsel. (CR135-137) (App. B). UTSW is

one of 14 UT institutions. (CR120-123) (App. A). In addition, Jason Warner,

Assistant Attorney General, Office of Attorney General's was UT System's

Counsel related to Appellees original petition and was UTSW's for the amended

petition. (CR 19-22, 149-152).

       In   Appellees'   case,   the   tolling   doctrines   of misnomer        and/or

 misidentification allows an abatement of the proceeding until the misnomer is

corrected. Reddy Partnership/5900 North Freeway LP v. Harris County

Appraisal District, 370 S.W. 3d 373, 55 Tex. Sup. Ct. J. 1099, 1101 (Tex. 2012).




                                        13
                                     PRAYER


       WHEREFORE, PREMISES CONSIDERED, Appellees pray that this Court

affirm the trial court's denial of its Plea to the Jurisdiction and Motion for

Summary Judgment, and such further relief, both at law and in equity, to which

they may be justly entitled.

                                              Respectfully submitted,

                                              !si'Br~       r.   w~
                                              Brenda J. Williams
                                              State Bar No. 21515300
                                              Bank of America, Oak Cliff Tower
                                              400 South Zang, Suite 1200
                                              (214) 946-0865 Tel
                                               (214) 948-3038 Fax
                                               bwilliams@bj williamslaw.com
                                              Attorney for Appellees


                     CERTIFICATE OF COMPLIANCE

       I hereby certify that this Appellees' Brief word count is in accordance with
 Tex. R. App. P. 9.4.
                                              Is! 'Br~..T. W~
                                                  Brenda J. Williams

                         CERTIFICATE OF SERVICE


       I do hereby certify compliance with Tex. R. App. P. 9.2 and 9.5(b). A true and
correct copy of the foregoing instrument has been served on all counsel, by
electronic transmission to the electronic mail address on file with the electronic filing
manager pursuant to Rule 9.5(b)(1 ). If a party has not designated an electronic mail
address with the electronic filing manager, the party was served a true and correct


                                         14
copy of the foregoing instrument in person, by mail, by commercial delivery service,
by fax or by email, or by such other manner as the Court in its discretion may direct
pursuant to Rule 9.5(b)(2). Service was made on all parties as provided on January
28,2017




                                                   Brenda J. Williams




                                     15
                          NO. 05-17-01221-CV


                 ]n tbe jf iftb Q!:ourt of £lppeal�
                         11Ballas, m:exas

  THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER,
                         Appellant,
                                    V.
           CHARLES WAYNE TAYLOR and ROSEMARY TAYLOR,
                           Appellees.


                 APPENDIX TO APPELEES' BRIEF


Appendix A      Texas Education Code Ann.§§ 65.01-65.16; 65.31

Appendix   B    Website-University of Texas System- The Office of General
                Counsel
APPENDIX "A"
                                   EDUCATION CODE

                              TITLE 3. HIG�IER EDUCATION

                   SUBTITLE C. THE UNIVERSITY OF TEXAS SYSTEM

    CHAPTER 65. ADMINISTRATION OF THE UNIVERSITY OF TEXAS SYSTEM

                          SUBCHAPTER A. GENERAL PROVISIONS

     Sec. 65.01.          DEFINITIONS.   In this chapter:
          ( 1) "System" or "university system fl means The University
of Texas System.
             (2)    "Board" means the board of regents of The University
of Texas System.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept.
1, 1971.


     Sec. 65.02. ORGANIZATION.   (a) The University of Texas System
is composed of the following institutions and entities:
          (1) The University of Texas at Arlington, including:
              (A)         The University of Texas Institute of Urban Studies
at Arlington;  and
                   (B)    The University of Texas School of Nursing at
Arlington;
           ( 2)The University of Texas at Austin, including:
              (A}  The University of Texas Marine Science Institute;
              (3)  The University of Texas McDonald Observatory at
�aunt Locke; and
                   ,:C)   The University of Texas School of Nursing at
Austin;
             (3)   The University of Texas at Dallas;
          ( 4) The University of Texas at El Paso, including The
University of Texas School of Nursing at El Paso;
          (5)  The University of Texas of the Permian Basin;
          (6)  The University of Texas at San Antonio, including the
University of Texas Institute of Texan Cultures at San Antonio;
              (7)   The University of Texas Southwestern Medical Center,
includins;:
                    (A)   The University of Texas Southwestern Medical
School at Dallas;
                    (B)   The University of Texas Southwestern Graduate
School of Biomedical Sciences at Dallas; and
                    (C}   The University of Texas Southwestern Allied Health
Sciences School at Dallas;
             f8)    The University of Texas Medical Branch at Galveston,
including:
                    (A)   The University of Texas Medical School ac
Galveston;
                    (Bl   The University of Texas Graduate School of
Biomed:i.cal Sciences at Galves-con;
                    (C)   The University of Texas School of Allied Health
Sciences at Galveston;
                    (D)   The University of Texas Marine Biomedical
Institute at Galveston;
                    :EJ   The University of Texas Hospitals at Galveston;
a.nd
                    (Fl   The University of Texas School of Nursing at
Galveston;
            {9)     The University of Texas Health Science Center at
Houston, including:
                    (A)   The University of Texas Medical School at Houston;
                    (BJ   The University of Texas Dental Branch at Houston;
              (C) The University of Texas Graduate School of
Biomedical Sciences at Houston;
              (D)  The University of Texas School of Health
Information Sciences at Houston;
                    (E}   The University of Texas School of Public Health at
Housi:on;
                    (F)   The University of Texas Speech and Hearing
Institute at Houston; and
               (G) The University of Texas School of Nursing ac
Houston;
          (10)   The University of Texas Health Science Center at San
Antonio, including:
                     (A}   The University of Texas Medical School at San
Ani:on.io;
                     (B)   The University of Texas Dental School at San
Antonio;
                     IC)   The University of Texas Graduate School of
3iomedical Sciences at San Antonio;
                     (D)   The University of Texas School of Allied Health
Sciences at San Antonio; and
                     (E)   The University of Texas School of Nursing at San
Antonio;
          (11)        The University of Texas M. D. Anderson Cancer Cente=,
including:
                     (A)   The University of Texas M. D. Anderson Hospital;
              (B}          Tbe University of Texas M. D. Anderson 'Tumor
Institute; and
                     (C)   The University of Texas M. D. Anderson Science
Park; and
              (12)    The University of Texas Health Science Center--South
Texas, including The University of Texas Medical School--South Texas,
if established under Subchapter N, Chapter 74_
        {b)   The University of Texas System shall also be composed of
such other institutions and entities as from time to time may b�
assigned by specific legislative act to the governance, contra�,
jurisdiction, or management of The University of Texas Systerr,_

Added by Acts 1973, 63rd Leg., p. 1186, ch. 435, Sec. 1, eff. Aug.
27, 1973. Amended by Acts 1989, 71st Leg., ch. 644, Sec. 2, eff.
June 14, 1989;         Ac-cs 2001, Tlth Leg., ch. 325, Sec. 1, eff. Sept. l,
2001.
A.mended by:
        Acts 2009, 81st Leg., R.S., Ch. 1341 (S.B. 98), Sec. 5, eff.
June 19, 2009.
     Acts 2013, 83rd Leg., R.S., Ch. 179 (H.B. l8H), Sec. 9, eff.
September 1, 2013.


                      SOBCHAPTER B. ADMINISTRATIVE PROVISIONS
     Sec. 65.11.    BOARD OF REGENTS.     The government of the university
system is vested in a board of nine regents appointed by the governor
with the advice and consent of the senate. The board may provide for
the administration, organization, and names of the institutions and
entities in The University of Texas System in such a way as will
achieve the maximum operating efficiency of such institutions and
entities, provided, however, that no institution or entity of The
University of Texas System not authorized by specific legislative act
to offer a four-year undergraduate program as of the effective date
of this Act shall offer any such four-year undergraduate program
without prior recorrmendation and approval by a two-thirds vote of the
Texas Higher Education Coordinating Board and a specific act of the
Legislature.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept.
1, 1971. Amended by Acts 1973, 63rd Leg., p. 1188, ch. 435, Sec. 2,
eff. Aug. 27, 1973; Acts 1989, 71st Leg., ch. 644, Sec. 3, eff. June
14, 1989.


     Sec. 65.12. QUALIFICATIONS; TERMS. Each member of the board
shall be a qualified voter; and the members shall be selected from
different portions of the state. The members hold office for
staggered terms of six years, with the terms of three expiring
Eebrua.r:y 1 of odd-numbered years.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, arc. 1, Sec. 1, eff. Sept.
1, 1971.    Amended by Acts 1983, 68th Leg., p. 2837, ch. 484, art.
III, Sec. 1, eff. June 19, 1983.


     Sec. 65.13.    BOARD OFFICERS.     The board .shall elect a chairman
from its members to serve at the will of the board.       The comptroller
shall be the treasurer of the university system.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept.
l, 1971. Amended by Acts 1997, 75th Leg., ch. 1423, Sec. 5.16, eff.
Sept. 1, 1997.
     Sec. 65.14.   EXPENSES.   The reasonable expenses incurred by
members of the board in the discharge of their duties shall be paid
from the available university fund.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept.
1, 1971.


     Sec. 65.15.   SEAL.   The board may make and use a common seal and
may alter it at will.

Acts 1971, 62nd Leg., p. 3145, ch. 1024, art. 1, Sec. 1, eff. Sept.
1, 1971.


     Sec. 65.16.   SYSTEM CENTRAL ADMINISTRATION OFFICE;    EXECUTIVE
OFFICER.    (a)  The board shall establish a central administration of
the university system to provide oversight and coordin ation of the
acti viU. es of the system and each component institution within the
system.
     (bl   The board shall appoint a chief executive officer and such
other executive officers of the system central administration as the
board considers appropriate.   The board shall determine each
officer's term of appointment, salary, and duties.
     (c)  Subject to the power and authority of the board, the chief
execu�ive officer is responsible for the general management of the
university system within the policies of the board and for making
recommendations to the board concerning the organization of the
universit y system and the appointment of the chief administrative
officer for each component institution within the system.
     (d)  In addition to other powers and duties provided by this
code or other law, the central administrat.ion of the system shall
recommend policies and rules to the governing board of the system to
ensure conformity with all laws and rules and to provide uniformity
in data collection and financial reporting procedures.

Added by Acts 1989, 71st Leg., ch. 464, Sec. 1, eff. June 14, 1989.


               SUBCHAPTER C. POWERS AND DUTIES OF BOARD
     Sec. 65.31.   GENERAL POWERS AND DUTIES.   (a)   The board is
authorized and directed to govern, operate, support, and maintain
each of the component institutions that are now or may hereafter be
included in a part of The University of Texas System.
     (b)   The board is authorized to prescribe for each of the
component institutions courses and programs leading to such degrees
as are customarily offered in outstanding American universities, and
to award all such degrees.   It is the intent of the legislature that
such degrees shall include baccalaureate, master's, and doctoral
deg.::ees, and their equivalents, but no new department, school, or
degree-program shall be instituted without the prior approval of the
Coordinating Board, Texas College and University System.
     (c)  The board has authority to promulgate and enforce such
other rules and regulations for the operation, control, and
management of the university system and the component institutions
thereof as the board may deem either necessary or desirable. The
board is specifically authorized and empowered to determine and
prescribe the number of students that shall be admitted to any
courser department, school, college, degree-program, or institution
under its governance.
     (d)  The board is specifically authorized to make joint
appointments in the component institutions under its governance. The
salary of any person who receives such joint appointment shall be
apportioned to the appointing institutions on the basis of services
rendered.
     (e)   The board is specifically authorized, upon terms and
conditions acceptable to it, to accept, retain in deposi�ories of its
choosing, and ad,_�inister gifts, grants, or donations of any kind,
from any source, for use by the system or any of the comporn:;mt
insti�utions of the system.
     (£)  No component institution which is not authorized to offer a
four-year undergraduate program shall offer a four-year undergraduate
program without the specific authorization of the legislature.
     (g)   The board by rule may delegate a power or duty of the board
to a committee, officer, employee, or other agent of the board.

Acts 1971, 62nd Leg., p. 3145, ch. 1024, art. 1, Sec. 1, eff. Sept.
l, 1971. Amended by Acts 1971, 62nd Leg., p. 3360, ch. 1024, art. 2,
APPENDIX "B"
UT System Offices [ University of Texas System                                                                            Page 2 of 3


Executive Vice Chancellor: Scott C. Kelley, Ed.O.                                                Systemwide lnfonnalion SeJVices
Business Affairs Website                                                                         Systemwide Complianc.e
                                                                                                 Technology and Information Services
The Office of Business Affaiis works with business officers at the 14 institutions in setting
                                                                                                 Texas Medical Dental Schools
and complying with policies and procedures for all business operations and management.           Application Service (TMDSAS)
                                                                                                 Travel Services
The Office of Business Affairs directs and coordinates the following offices:
                                                                                                 University Lilnds

 • Controller & Chief Budget_Pfficer
     , Hislorically_Underutilized Business (HUB)

    Director of Police
   Emoloyee Benefits
   Employee SeNices
    Facilitfes planrcing and construction
   Finance
 • Systernwide Information SeNices
 • Technology and lnform�tion SeNices
 • University Lands



The Office of General Counsel
Vrce Chancellor and General Counsel: Daniel H. Sharphorn, J.D.
General Counsel Website

The Office of General Counsel provides comprehensive legal services and professional
expertise to and for System administration and the 14 UT institutions, and coordinates and
manages litigation services provided by the Attorney General's Office and outside counsel.
It also serves as administrator of the UT System medical liability self-insurance ptan and as
ethics advisor for the System.

Additionally, me Office or General Counsel manages and oversees the following functions

 • Real Estate Office



Office of Governmental Relations
Vice Chancellor and Chief Governmental Relations Officer: Barry R. McBee, J.D.
Governmental Relations Website

The Offic:e of Governmental Relations monito� governmental affairs affecting higher
education and interacts with state and local governments on behalf of the System and its
institutions. ln collaboration with other UT officials, as well as other nigher education
entities, the office works closely with legislators, legislative staff and state agencies on a
wide variety of issues.

The Office of Governmental Relations directs and coordinates the following office

 • The Office of Federal ReJ�



Office of External Relations



http;/1\n'rw.utsystem.cdu/officcs                                                                                          2/16/2017
The Office of General Counsel I University of Texas System                                                        Page 2 of 2


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        https://v.ww.utsystcm.edu/officesigenernl-counsel                                                                                  2/20/2017
